01982457
03-12-1999
Cemille P. Parker, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region) Agency.
Cemille P. Parker, )
Appellant, )
)
v. ) Appeal No. 01982457
) Agency No. 4C190007197
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region) )
Agency. )
__________________________________ )
DECISION
Appellant filed a timely appeal with this Commission from a final agency
decision (FAD) partially dismissing 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. Appellant alleged that she was
subject to harassment in retaliation for prior EEO activity when:
(1) On May 17, 1995, a co-worker lunged at her in an aggressive and
hostile manner, and she lodged a complaint with the Postal Police and
informed the Fleet Manager;
(2) On May 19, 1995, Fleet Manager informed her that leaving
her assignment on May 17, 1995, without authorization amounted to
insubordination and that the next time she would be suspended; and that
she had to have a travel slip signed by her supervisor when she left
her assignment;
(3) On December 18, 1996, she went to both the Postal Police and
Inspection service regarding an incident where a co-worker grabbed
her on December 17, 1996, and when her supervisor found out about it
he told her that whatever went on in the garage was our business and
that we would solve our own problems;
(4) On December 3, 1996, she submitted leave slips, PS Form 3971 for
December 24, 1996, and December 26, 1996, and no response was given to
her request;
(5) On December 20, 1996, during a clerk/management meeting, management
stated once again that if we had any problems over in the garage then we
solve them ourselves; and a co-worker chimed in �that means not running
across the street to Inspection Service because they are not going to
do anything anyway;� and
(6) On December 26, 1996, she was not allowed to work overtime.
In its FAD, the agency accepted allegation (6) for investigation.
The agency dismissed allegations (1) and (2) pursuant to 29 C.F.R. �
1614.107(b) for failure to initiate timely EEO contact and allegations
(3), (4), and (5) pursuant to 29 C.F.R. � 1614.107(a) for failure to state
a claim. Having reviewed appellant's statement in support of her appeal,
we find that appellant challenges the dismissal of all five allegations.
Allegations (1) and (2)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of an EEO counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action.
The record establishes that appellant initiated EEO counselor contact
on May 22, 1995, and again on December 18, 1996. Under 29 C.F.R. �
1614.105(a)(1), appellant's May 22, 1995, contact in regard to allegations
(1) and (2) was timely. The agency does not deny that appellant requested
counseling on May 22, 1995, but states that the May 22, 1995, contact
concerned incidents brought under case number 4-C-190-1177-95, which
complaint, according to the agency, appellant withdrew on May 31, 1996.
In support of this contention, the agency has submitted a computer
generated record of case number 4-C-190-1177-95 from its complaint
tracking system.
Since we are unable to ascertain from the evidence submitted whether
allegations (1) and (2) were processed under a prior complaint, on remand,
the agency is instructed to conduct a supplemental investigation. If the
agency finds that allegations (1) and (2) were not the subject of a prior
complaint, the agency shall accept them for processing since the record
establishes that appellant raised both allegations when she made timely
EEO contact on May 22, 1995. If the agency finds that allegations (1)
and (2) were resolved in a prior complaint, the agency is required to
dismiss them pursuant to 29 C.F.R. � 1614.107(a) but may consider them
as background in this instant complaint of harassment.
Allegations (3)-(5)
EEOC Regulation 29 C.F.R. � 1614.107(a) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, that fails
to state a claim. 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 sustains 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 determining whether a harassment complaint states a claim in other
cases where a complainant had not alleged disparate treatment regarding
a specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment allegations,
when considered together and assumed to be true, were sufficient to state
a hostile or abusive work environment claim. Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). Harassment is
only actionable as a discrete claim of employment discrimination if,
allegedly, the harassment is sufficiently severe or pervasive so as to
alter the conditions of a complainant's employment and thereby create
a hostile or abusive work environment. Id.
In allegations (3) and (5), appellant's supervisor stated that problems
�in the garage� were to be resolved internally. In Crespo v. United
States Postal Service, EEOC Request No. 05920842 (September 17, 1993),
the Commission held that:
The agency has a continuing duty to promote the full realization of
equal employment opportunity in its policies and practices. This duty
extends to every aspect of agency personnel policy and practice in the
employment, advancement, and treatment of employees. Agencies shall,
among other things, insure that managers and supervisors perform in
such a manner as to effectuate continuing affirmative application and
vigorous enforcement of the policy of equal opportunity.
In the instant case, appellant's supervisor, rather than encouraging the
realization of equal employment opportunity in the workforce, discouraged
appellant from availing herself of the ultimate tool that employees have
to enforce equal employment opportunity - the filing of an EEO complaint.
Torres v. Social Security Administration, EEOC Request No. 05950947
(March 10, 1998). We therefore find that appellant's allegations of
her supervisor's veiled threats of interference in the EEO process are
sufficiently severe to state a claim of harassment.
In response to allegation (4), the agency states that appellant was
granted leave for both days requested. The evidence submitted to support
the agency's assertion is insufficient, and we note that allegation (6)
contradicts the agency's assertion. On remand the agency is instructed
to conduct a supplemental investigation. If the agency finds that
appellant's leave request was denied, the agency shall accept allegation
(4) for processing because its temporal proximity to allegations (3)
and (5) would require its inclusion in the instant harassment claim.
Accordingly, we VACATE the FAD and REMAND allegations (1) - (5) for
further processing in accordance with this decision and 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. � 1614.410.
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:
March 12, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations