01983244
12-17-1999
Esau A. Building, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Esau A. Building v. United States Postal Service
01983244
December 17, 1999
Esau A. Building, )
Complainant, )
)
v. ) Appeal No. 01983244
) Agency No. 4-A-100-0056-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 18, 1997, complainant initiated contact with
an EEO Counselor. In a three-page statement attached to his
Information-for-Precomplaint-Counseling-Form, complainant raised
the following matters: (a) on October 29, 1997, an agency supervisor
threatened to write-up complainant; (b) on October 29, 1997, an agency
Manager refused to meet with complainant regarding a tour change;
(c) on November 4, 1997, the supervisor threatened complainant with
disciplinary action for purportedly failing to deliver mail to a company;
(d) on November 10, 1997, the supervisor again threatened complainant
with disciplinary action; and (e) the supervisor disciplined complainant
for taking a truck to an agency garage before the end of the work day.
Informal efforts to resolve the complaint were unsuccessful, and
consequently, complainant filed a formal complaint on February 11, 1998.
In his complaint, he alleged that he was being treated differently than
other employees on the bases of race (African-American), color (black),
and in reprisal for prior EEO activity in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
Complainant explained in the formal complaint that the discriminatory
incidents were "previously given in the original statement."
On February 25, 1998, the agency issued a final decision (FAD) dismissing
the complaint for failure to state a claim. The FAD defined complainant's
claims as follows:
On October 29, 1997, complainant was threatened with being written-up,
and the manager of customer service refused to see him;
On November 4, 1997, complainant was threatened with disciplinary action;
and
On November 10, 1997, complainant was threatened with disciplinary
action.
In its FAD, the agency found that complainant failed to articulate any
loss he suffered with respect to a term, condition, or privilege of his
employment.
Complainant received the FAD on March 3, 1998, and filed a timely appeal
with this Commission on March 18, 1998.<1> On appeal, complainant
contends, inter alia, that he was disciplined, not merely threatened,
and that he was entitled to payment for the work he was forced to perform
over his normal lunch period when he was threatened. Complainant also
wishes to add the basis of religion to his complaint.
In response, the agency claims that complainant was threatened but
never received any discipline. The agency notes that complainant
never specified what discipline he claims to have received, or when
it was issued/ordered. Consequently, argues the agency, complainant
failed to state a claim because he provided no evidence that the threats
materialized in discipline.
The record includes a copy of the Counselor's Report, dated February
17, 1998, which lists all of the incidents alleged in complainant's
three-page statement. The report also contains notes from interviews
with complainant's supervisor, which state that complainant was issued
a Letter-of-Warning (LOW) on February 22, 1996, for the matter raised
in allegation (e).
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at
and hereinafter referred to as 29 C.F.R. �1614.107(a)(1)). 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. See 29 C.F.R. �1614.103; 29 C.F.R. �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. 22,
1994)..
The agency appears to have relied solely on complainant's formal complaint
to define the incidents in his claim, without reference to complainant's
prior statements or the Counselor's Report. While the formal complaint
is vague and lacking in detail, complainant's informal complaint and
Counselor's Report set forth specific claims. The Commission finds
that the agency failed to properly refer to the informal complaint
and the Counselor's Report for clarification of the issues raised.
The agency failed to address complainant's claim concerning his LOW,
and the Commission deems the agency's action to be tantamount to an
improper dismissal of that matter.
The Commission also finds that complainant's three-page statement,
describing in detail the various threats he allegedly received, raises
a pattern of harassment. But instead of treating these events as
incidents of a claim of harassment involving repeated threats or use
of discipline, the agency looked at each factual claim individually.
Thus, we find that the agency acted improperly by treating matters raised
in the complaint in a piecemeal manner. See Meaney v. Department of
the Treasury, EEOC Request No. 05940169 (November 3, 1994) (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 matter complained of); see also EEOC-Management Directive (MD) 110,
at 5-6, as revised November 9, 1999. ( "when an agency identifies each
piece of factual evidence . . . offered by the complainant as a separate
and distinct legal claim, it ignores the complainant's real underlying
claim of a pattern of ongoing discrimination." (emphasis in original)).
Consequently, when complainant's claims are viewed in the context of the
complaint of harassment, they state a claim and the agency's dismissal
of those claims for failure to state a claim was improper.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED and the complaint,
as clarified herein, is REMANDED for further processing.
ORDER (E)
The agency is ORDERED to process the remanded claims in accordance with 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �1614.108).
The agency shall acknowledge to complainant that it has received the
remanded claims 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 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
December 17, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at WWW.EEOC.GOV.