01962012
10-06-1998
Patricia M. Coates, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Patricia M. Coates, )
Appellant, )
)
v. ) Appeal No. 01962012
) Agency No. 4C-164-1021-94
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The record reflects that on March 14, 1994, the agency issued a final
decision dismissing appellant's complaint for failure to state a claim.
Appellant appealed that decision, and the Commission remanded the
complaint to the agency for a supplemental investigation to determine the
specific nature of appellant's complaint. Patricia Wiley v. U.S. Postal
Service, EEOC Appeal No. 01943156 (March 21, 1995). Pursuant to the
Commission's order, on April 17, 1995, the agency sent appellant a letter
requesting clarification of her complaint. On May 4, 1995, appellant
responded, stating that there was a mutual understanding reached
upon appellant's withdrawal of two prior EEO complaints she filed,
in which it was agreed that she would not have to be in contact with,
nor communicate with, her Group Leader ("GL"). Additionally, appellant
indicated that "I also had attach (sic) as well as submitted you (sic)
dates as well as events which had occurred."
On December 16, 1995, appellant again filed a timely appeal with
this Commission from the agency's second final decision (FAD) dated
November 17, 1995, pertaining to her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
The agency characterized appellant's complaint as alleging that she was
subjected to discrimination on the bases of race (African-American),
color (Black), sex (female), age (over 40), and in reprisal for prior
EEO activity when on December 14, 1993, she was instructed to follow
the orders of GL, which instruction appellant claimed was in violation
of prior EEO settlements.
The agency again dismissed appellant's complaint pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
Specifically, the agency found that the record did not contain any written
settlement agreement which prohibited GL from giving orders to appellant,
his subordinate. Finding no evidence that appellant suffered any harm
with respect to the terms, conditions or privileges of her employment
as a result of GL's orders, the agency determined that appellant was
not aggrieved.
The Commission notes that the record contains an undated letter from
appellant to the agency's EEO Counselor in which she specifically
identifies incidents of alleged harassment from the GL occurring on
November 29, 1993, through December 3, 1993, and December 8, 1993,
through December 10, 1993. Specifically, appellant alleged that the
GL attempted to remove her from her bid assignment, provoke appellant
by giving her conflicting job assignments, denied appellant the ability
to hang air mail pouches, screamed at appellant, and attempted to find
fault in every job appellant performed.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex, and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age), the Rehabilitation Act (discrimination
on the basis of disability), and the Equal Pay Act (sex-based wage
discrimination) shall be processed in accordance with part 1614 of
the EEOC regulations. In addition, the U.S. Supreme Court has stated
that an employee is aggrieved when some personal loss or harm has been
suffered with respect to a term, condition, or privilege of employment.
See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205
(1972). Specifically, an employee must allege and show a "direct,
personal deprivation at the hands of the employer, that is, a present
and unresolved harm or loss affecting a term, condition or privilege of
his/her employment." Taylor v. USPS, EEOC Request No. 05900367 (June 2,
1990); Hammonds v. USPS, EEOC Request No. 05900863 (October 31, 1990).
Appellant alleged that the agency subjected her to discrimination when
she was instructed to follow orders of the GL. Specifically, appellant
asserted that this was in direct contravention of a settlement she entered
into with the agency in which she agreed to withdraw two previously
filed EEO complaints. The record contains no evidence of any written
settlement agreement into which the parties entered. Even if there was an
oral agreement involving the withdrawal of appellant's EEO complaints,
we note that EEOC Regulation 29 C.F.R. �1614.603 provides that "Any
settlement reached shall be in writing and signed by both parties and
shall identify the allegations resolved." The Commission has previously
upheld an oral settlement agreement in one narrow circumstance: where an
agreement was formed during a hearing before an EEOC Administrative Judge
and transcribed by a court reporter. In Acree v. Department of the Navy,
EEOC Request No. 05900784 (October 4, 1990), the Commission noted that the
hearing transcript evidenced the agreement between the parties and that
the subsequent written version of the agreement reflected the terms of
the oral agreement that was evidenced in the hearing transcript. In the
instant matter, we do not have a hearing transcript or its equivalent
on which to bind the parties. Any purported verbal resolution of her
EEO complaints was not reduced to writing. Therefore, we find that there
was no written settlement agreement of an EEO complaint as provided for
in �1614.603 and that there is no valid oral settlement agreement as
described in Acree. Consequently, the agency properly did not address
appellant's allegations as breach allegations.
We find, however, that the agency's dismissal of appellant's allegations
for failure to state a claim was improper. Appellant alleged that she was
subjected to harassment by the GL on November 29, 1993, through December
3, 1993, and December 8, 1993 through December 10, 1993. The agency
found that appellant failed to show that she suffered a harm to a term,
condition, or privilege of her employment by the identified incidents.
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).
In the present case, appellant alleges that she was subjected to
harassment by the GL. Specifically, appellant alleged that the GL
attempted to remove her from her bid assignment, provoke appellant by
giving her conflicting job assignments, denied appellant the ability
to hang air mail pouches, screamed at appellant, and attempted to find
fault in every job appellant performed. Considering that the identified
actions were all perpetrated by the GL over a short-period of time, and
viewing the identified comments and actions in the light most favorable
to appellant, we find that appellant has stated a cognizable claim under
the EEOC Regulations. See Cervantes v. United States Postal Service,
EEOC Request No. 05930303 (November 12, 1993). Accordingly, the agency's
decision to dismiss appellant's complaint for failure to state a claim
was improper. This complaint is hereby REMANDED for further processing
in accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.10.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
October 6, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations