01977066
02-26-1999
Denise A. DaMoude, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Denise A. DaMoude v. United States Postal Service
01977066
February 26, 1999
Denise A. DaMoude, )
Appellant, )
)
v. ) Appeal No. 01977066
) Agency No. 4D-230-0130-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. The final decision was received by appellant
on September 5, 1997. The appeal was postmarked September 24, 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.
On July 8, 1997, appellant filed a formal complaint, alleging that she
was the victim of unlawful employment discrimination on the basis of sex.
Therein, appellant addressed various incidents of sexual harassment and
threats of violence by her co-workers, and a letter of removal issued
to her.
On August 27, 1997, the agency issued a final decision. Therein,
the agency determined that appellant's complaint was comprised of four
allegations, that were identified in the following fashion:
1. On November 14, 1996, and December 5, 1996, [appellant] was verbally
abused by a [co-worker].
2. On December 26, 1996, she was sexually harassed by . . . a co-worker.
3. On December 31, 1996, . . . a co-worker threatened her physically.
4. She was issued a letter of removal dated January 17, 1997.
The agency dismissed allegations 1 - 3 for failure to state a claim.
Specifically, the agency found that an agency Postmaster investigated
the incident addressed in allegation 2, which resulted in a notice
of removal for the co-worker that was the subject of that allegation.
Regarding allegation 3, the agency found that an investigation revealed
that both appellant and the co-worker identified in that allegation
acted improperly. The agency concluded that no other improper actions
were brought to the attention of the investigator.
The agency also dismissed allegation 4 for failure to state a claim.
Specifically, the agency found that a Step 2 Settlement Agreement
dated February 12, 1997, reduced the removal to a seven-day suspension.
Citing Gwyn v. USPS, EEOC Request No. 05900844 (October 4, 1990), the
agency determined that this allegation was collateral to her grievance.
On appeal, appellant argues that she continues to work in a hostile
environment.
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 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 determining whether allegations 1 - 3 of appellant's complaint state a
claim, the Commission must take into account that appellant claims that
the alleged incidents addressed in these allegations form a pattern of
harassment on the basis of her sex. By alleging a pattern of harassment,
appellant has stated a cognizable claim under the EEOC regulations.
See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993.
Accordingly, the agency's decision to dismiss allegations 1 - 3 for
failure to state a claim was improper and is REVERSED. Allegations 1 -
3 are REMANDED to the agency for further processing in accordance with
this decision and applicable regulations.
We note that in its final decision, the agency stated that an
investigation was conducted into the matters raised in allegations 1 -
3; that one of the co-workers identified in one of the allegations has
been disciplined; that appellant and a co-worker both acted improperly
in regard to the matter raised in another allegation; and that the
investigation revealed no other improper actions. We find that the
agency has articulated a reason that goes to the merits of appellant's
allegations, and is irrelevant to the procedural issues of whether she
has stated a justiciable claim with regard to the matters addressed in
allegations 1 - 3. See Ferrazzoli v. USPS, EEOC Request No. 05910642
(August 15, 1991).
The Commission also finds that allegation 4 was improperly dismissed for
failure to state a claim. Allegation 4 was dismissed as a collateral
attack on the grievance process. In Gwyn, cited by the agency in its
final decision, the Commission rejected appellant's allegation as a
collateral attack on the grievance settlement, i.e., an attempt to
contest the outcome or disposition of the grievance. In allegation 4
of the instant case, however, appellant is not contesting the outcome of
the grievance. Instead, appellant is alleging that the initial removal
action, which was the subject of the grievance, was discriminatorily
imposed. The Commission finds that allegation 4 states a claim.
Accordingly, the agency's decision to dismiss allegation 4 is REVERSED.
This allegation 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 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:
Feb 26, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations