01A05964_r
01-11-2002
Philip D. Everett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Philip D. Everett v. United States Postal Service
01A05964
January 11, 2002
.
Philip D. Everett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05964
Agency No. 4K-200-0052-00
DECISION
In a formal EEO complaint dated March 17, 2000, complainant claimed
that he had been sexually harassed on the bases of his sex (male) and
in reprisal for his previous EEO activity under Title VII when since
September 1999, his job security was threatened because he refused to
continue having a sexual relationship with his supervisor. The specific
incidents raised by complainant are that his supervisor told him to bid
out of her section or he would have a poor work record; his supervisor
complained about his work performance and told another supervisor to have
a discussion with him about a mistake; his supervisor said that his work
performance was going to be evaluated every three months; his supervisor
told him on two occasions that he should bid out of the office or he would
lose his job; his supervisor informed him that he would lose his job if
he filed a sexual harassment complaint against her; his supervisor refused
to allow him to perform testing even though he had received training; and
his supervisor informed him that she was unhappy with his work performance
and she was going to submit a statement to her supervisor about it.
In its decision dated August 17, 2000, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds of failure to state
a claim. The agency determined that complainant failed to establish that
he suffered a personal loss or harm with regard to a term, condition,
or privilege of his employment. The agency stated that complainant
failed to show how his supervisor threatened his job security.
On appeal, complainant contends that his supervisor created a hostile
work environment for him by threatening him with a loss of his job,
a poor work record, and denial of promotions. Complainant claims that
the hostile work environment also included his supervisor monitoring
his work performance too closely and another supervisor meeting with him
concerning his mistakes. According to complainant, his supervisor called
him at home to complain about his work and she told him that his work
performance would be evaluated every three months. Complainant argues
that his supervisor's statements and actions occurred because he had
ended their sexual relationship.
We find that the alleged conduct of complainant's supervisor is
sufficiently pervasive to state a claim of harassment. Thus, the alleged
discrimination states a claim of personal harm to a term, condition,
or privilege of complainant's employment. Accordingly, the agency's
decision to dismiss complainant's complaint was improper and is REVERSED.
This matter is hereby REMANDED for further processing pursuant to the
ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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
January 11, 2002
__________________
Date