Robert L. Council, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 13, 1999
01975730 (E.E.O.C. Apr. 13, 1999)

01975730

04-13-1999

Robert L. Council, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Robert L. Council v. United States Postal Service

01975730

April 13, 1999

Robert L. Council, )

Appellant, )

) Appeal No. 01975730

v. ) Agency No. 4D-230-0087-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

On July 14, 1997, appellant filed a timely appeal of a June 27, 1997 final

agency decision dismissing his complaint for failure to state a claim.

In its final decision, the agency framed the allegation of appellant's

February 28, 1997 complaint as whether appellant was discriminated

against on the bases of race (Black) and sex (male) when on January 3,

1997, he suffered an injury as the result of a co-worker's [Person A's]

intentionally aggressive behavior and management failed to discipline

the employee for his conduct. In dismissing the allegation, the agency

stated that appellant was not aggrieved because he had not suffered a

harm or loss.

In his complaint and a narrative accompanying the complaint, appellant

alleged that Person A and Person B, co-workers, exhibited hostile and

aggressive behavior towards him and demeaned him. He stated that since

his transfer to the mailhandler's craft in April 1996, he was constantly

harassed, humiliated and bullied by Person A and, also, that Person B was

verbally and physically hostile towards him. He alleged that on January

3, 1997, in anger directed at him, Person A slammed a fully loaded mail

equipment into the area where he was working, causing a piece of equipment

to run over his foot and result in a physical injury. He also alleged

that since 1996, Person A openly criticized and harassed him repeatedly,

used profane and aggressive language towards him. He further alleged

that Person A, a safety officer, misinformed him about safety and job

function issues. Regarding Person B, appellant alleged that Person B also

used profane and aggressive language towards him. He cited an incident

wherein Person B allegedly tried to slam a security door on his hand.

Appellant further alleged that the ongoing actions left him feeling

threatened and stressed and, although he informed his supervisor about

each incident taken against him by Person A and Person B, the supervisor

failed to take any action.

In his EEO Request for Counseling, appellant described the incident that

occurred on January 3, 1997, and also alleged that he was subjected to

willful and intentional emotional distress, stress, harassment, incidents

of disrespectful and hostile verbal abuse, threats and attempts to injure

him.

On appeal, appellant maintains that he works in an environment that

is hostile, threatening and intimidating and that he is subjected

to harassment. He again identified incidents of alleged harassment

involving Person A and Person B.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may

dismiss a complaint or a portion of a complaint which fails to state a

claim pursuant to 29 C.F.R. �1614.103 or �1614.106(a). An agency shall

accept a complaint from any aggrieved employee who believes that he

or she has been discriminated against by that agency because of race,

color, religion, sex, national origin, age or a disabling condition.

See 29 C.F.R. �1614.103; �1614.106(a). The Commission's Federal sector

case precedent has long defined an "aggrieved employee" as one who suffers

a present harm or loss with respect to a term, condition, or privilege

of employment for which there is a remedy. Diaz v. Department of the

Air Force, EEOC Request No. 05931049 (April 21, 1994).

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, we find that the dismissed allegation, standing alone, states

a claim since appellant has alleged that he suffered a physical injury

as a result of the actions of Person A. The alleged action of Person A

affected a term or condition of his employment, and therefore appellant

has stated a cognizable claim under the Regulations. See Jellison

v. Department of Defense, EEOC Appeal No. 01965373 (July 2, 1997)

(allegation of verbal and physical assault states a claim); Mastin

v. U.S. Postal Service, EEOC Appeal No. 01923417 (September 4, 1992)

(allegation of physical assault states a claim).

Moreover, we find that the agency failed to identify all the allegations

raised in appellant's complaint. The record makes it clear that from

the time appellant sought informal counseling, he was alleging that

he was subjected to harassment and a hostile work environment, and

that management, despite being aware of the harassment, failed to take

appropriate action. In his complaint, appellant identified individual

incidents as part of a broader claim of harassment and a hostile work

environment. Nonetheless, the agency defined appellant's complaint as

consisting of a single incident. The Commission has previously held

that an agency should not ignore the "pattern aspect" of a complainant's

allegations and define the issues in a piecemeal manner where an analogous

theme unites the matters complained of. Meaney v. Department of the

Treasury, EEOC Request No. 05940169 (November 3, 1994). The Commission

deems the agency's failure to address these additional allegations to

be tantamount to a dismissal of those matters.

Consistent with our discussion herein, we find that the agency's

decision to dismiss appellant's complaint was improper and is REVERSED.

The complaint of harassment which created a hostile work environment and

the agency's failure to stop the harassment is REMANDED to the agency

for further processing in accordance with this decision and applicable

regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded complaint as defined herein

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 acknowledgement 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. �1614.410.

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:

April 13, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations