01972257
11-02-1998
Willie McNeal III, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Willie McNeal III, )
Appellant, )
)
)
v. ) Appeal No. 01972257
) Agency No. 4-H-335-0047-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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. The final agency decision was issued on December
18, 1996. The appeal was postmarked January 13, 1997. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
On October 18, 1996, appellant contacted an EEO Counselor alleging
discrimination based on race (Black), religion (Jehovah's Witness), and
sex (male) when his supervisor made slanderous and defamatory remarks
about his race and religion. Specifically, appellant became aware from
a third party that his supervisor stated that appellant was "very, very
slow" and made a derogatory reference to appellant's race by stating
"you know how slow they are." Appellant further learned through the
third party that the supervisor had made a negative reference to his
religion by stating "I think they like to feel that way." Attached to
appellant's request for counseling an eight-page narrative regarding
other incidents of alleged discrimination. The EEO counselor's report
addressed only the alleged racial and religious slurs. In November
1996, appellant filed an EEO complaint. Appellant did not specify
his allegations of discrimination in the complaint; rather, he simply
referred to his previously submitted documentation.
On December 18, 1996, the agency issued a final decision dismissing
appellant's complaint for failure to state a claim. Specifically,
the agency found that the supervisor's remarks did not cause a direct
deprivation of any employment benefit.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 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 (Apr. 21, 1994).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall
dismiss a complaint that fails to state a claim under �1614.103.
The agency limited the issue in appellant's complaint to whether the
supervisor's remarks were discriminatory. A review of the record as
a whole, however, showed that appellant was alleging discriminatory
harassment.
The Commission recently reaffirmed what is required in harassment cases
to state a claim under the above regulation. See Cobb v. Dept. of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). In Cobb,
the Commission instructed that claims of harassment should be accepted
where the complainant has made factual allegations which, when considered
together<1> and treated as true, are sufficient to state a claim either
of (1) disparate treatment regarding hiring, termination, compensation
or any other specific term, condition, or privilege of employment; or
(2) a hostile or abusive work environment. Id. The Commission held that
"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....[T]he
trier of fact should consider whether a reasonable person in the
complainant's circumstances would have found the alleged behavior to be
hostile or abusive." Id.
In addition to the racial and religious slurs, appellant's narrative
also raised multiple incidents of undue scrutiny regarding his time and
attendance and his work performance that occurred between August 1996
and October 1996. On appeal, appellant explained that he was attempting
to show "a pattern of ongoing discriminatory harassment and treatment
which culminated in [his] supervisor making derogatory remarks...." The
Commission finds that appellant's complaint is sufficient to state a
claim of discriminatory harassment. On remand, however, appellant shall
have the opportunity to meet with an EEO counselor to more closely define
the substance of his harassment allegations.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to state a claim hereby is REVERSED.
ORDER
The agency is ORDERED to process the remanded complaint in accordance with
29 C.F.R. �1614.108. The agency, however, first shall allow appellant
the opportunity to meet with an EEO counselor to more closely define the
substance of his harassment allegations. The agency shall acknowledge to
the appellant that it has received the remanded complaint 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.
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.
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 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
November 2, 1998
_______________________ ________________________________
DATE Ronnie Blumenthal, Director
1The Commission stated that, when considering whether a harassment
complaint states a hostile or abusive work environment claim,
the decision maker must consider all of the alleged harassing
incidents and remarks.