0120071146
04-05-2007
Lonnie B. Ellison, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lonnie B. Ellison,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071146
Agency No. 4H-370-0004-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 17, 2006, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to harassment on
the basis of reprisal for prior protected EEO activity. In support of
his claim, complainant indicated that the following events occurred:
1. On October 4, 2006, the Postmaster brought complainant leave slips
demanding that complainant sign them for the time sheets, however, the
Postmaster did not allow complainant to sign the slips until complainant
signed for a letter sent by the Postmaster by certified mail. Complainant
refused to sign for the certified letter.
2. On September 30, 2006, complainant had to make five phone calls to
the Postmaster in order to take the day off on October 1 and 2, 2006.
The Postmaster also told complainant not to call him on a Sunday.
3. On October 6, 2006, complainant indicated that when he was leaving
the post office, the Postmaster was waiting outside of the mail dock,
yelling and screaming at complainant to come back and look at his door
which was unlocked as was complainant's practice for a few years.
4. On October 10, 2006, complainant handed the Postmaster a stack
of vacation leave slips for October 19 and 20, 2006. The Postmaster
stated that complainant had not signed for the certified letter yet and
he would not have the leave slips signed until complainant signed for
the letter.
5. On October 13, 2006, the Postmaster told complainant to go to his
office and fill out leave slips for October 2 and 3, 2006. Complainant
noted that he was treated different because others were given slips that
were filled out and only required the employee's signature.
6. The Postmaster continued to badger complainant over the certified
letter for which complainant refused to sign.
In addition, complainant filed a second pre-complaint counseling form
on November 1, 2006. The agency included considered complainant's claim
of harassment to include the following, additional events:
7. On October 31, 2006, a clerk announced out loud to the Postmaster
that the ADR specialist handling complainant's case had called.
This announcement was made in front of all the mail carriers.
8. On October 31, 2006, after the phone call, the Postmaster asked if
someone said that the Postmaster was talking about complainant.
9. On November 1, 2006, the Postmaster accused complainant of starting
to work earlier than his scheduled time. The Postmaster also told
complainant that the ADR specialist said that complainant is a "dangerous
person."
The agency dismissed the complaint as a whole for failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant appealed
asserting that the dismissal was inappropriate.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993), the Supreme Court reaffirmed the holding of Meritor Savings
Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. The Court explained that an "objectively
hostile or abusive work environment [is created when] a reasonable person
would find [it] hostile or abusive:" and the complainant subjectively
perceives it as such. Harris, supra at 21-22. Thus, not all claims
of harassment are actionable. Where a complaint does not challenge
an agency action or inaction regarding a specific term, condition or
privilege of employment, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents and
remarks, and considering them together in the light most favorable to the
complainant, determine whether they are sufficient to state a claim. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Upon review of the record and taking the events of the case as a whole,
we find that complainant has asserted a claim of retaliatory harassment.
Therefore, we find that the removal action was inappropriate.
Accordingly, we REVERSE the agency's decision to dismiss the complaint
and REMAND the matter back to the agency for further processing as
ordered below.
ORDER (E0900)
The agency is ordered to process the remanded complaints in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the
complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 5, 2007
__________________
Date
2
0120071146
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071146