Philip D. Everett, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 11, 2002
01A05964_r (E.E.O.C. Jan. 11, 2002)

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