01992301
10-21-1999
Felisa M. Ruiz, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Felisa M. Ruiz v. United States Postal Service
01992301
October 21, 1999
Felisa M. Ruiz, )
Appellant, )
)
v. ) Appeal No. 01992301
) Agency No. 4-I-640-0017-99
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., and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq. The final agency decision
was issued on December 30, 1998. The appeal was postmarked January 28,
1999. 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.
ISSUES PRESENTED
1. The first issue presented on appeal is whether the agency properly
dismissed allegations 1-2 of appellant's complaint on the grounds of
failure to state a claim.
2. The second issue presented on appeal is whether the agency properly
dismissed allegation 4 of appellant's complaint on the grounds that it
alleged that a proposal to take a personnel action was discriminatory.
BACKGROUND
Appellant initiated contact with an EEO Counselor on October 28, 1998.
On December 11, 1998, appellant filed a formal EEO complaint wherein
she alleged that she was discriminated against on the bases of her age
(date of birth, October 12, 1925) and in reprisal for her previous EEO
activity when:
On October 1, 1998, she was told not to complete applications for Hispanic
Christmas casuals and she was also asked, "Why don't you just leave".
On December 7, 1998, she was accused of turning Christmas casuals away.
On December 8, 1998, she was denied annual leave.
On December 17, 1998, she was informed of a proposed disciplinary action.
In its final decision, the agency dismissed allegations 1-2 of
appellant's complaint on the grounds of failure to state a claim.
The agency determined that appellant failed to establish how her working
conditions were changed or how she was harmed by the incidents set forth
in allegations 1-2. Allegation 4 was dismissed on the grounds that it
alleged that a proposal to take a personnel action was discriminatory.
The agency concluded that appellant was informed of a proposed
disciplinary action which had not occurred at the time she filed her
complaint. Allegation 3 was accepted for investigation.
On appeal, appellant contends that she has been subjected to a continuing
pattern of discrimination. Appellant claims that she was issued two
suspensions, the latter suspension was issued on January 15, 1999.
Appellant indicates that the actions taken against her constitute
harassment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(e) states that the agency shall
dismiss a complaint or portion of a complaint that alleges that a proposal
to take a personnel action or other preliminary step to taking a personnel
action, is discriminatory.
The record reveals that appellant claimed that she was informed on
December 17, 1998, of a proposed disciplinary action. The Commission has
held that proposed actions do not create a direct and personal deprivation
which would make the appellant an "aggrieved" employee within the meaning
of EEOC Regulations. See Charles v. Department of the Treasury, EEOC
Request No. 05910190 (February 25, 1991); Lewis v. Department of the
Interior, EEOC Request 05900095 (February 6, 1990). If however, the
complainant alleges that the preliminary step was taken for the purpose
of harassing the complainant for a prohibited reason, the agency may
not dismiss the allegation as preliminary because, allegedly, the matter
already has adversely affected the complainant. See Section-by-Section
Analysis, 57 Fed. Reg. 1263 (1992); Henry v. United States Postal Service,
EEOC Request No. 05950229 (November 22, 1995); EEOC Management Directive
110 (MD-110) (October 22, 1992), at 4-7, note 2. It is evident from the
record that appellant's allegation that she was informed of a proposed
disciplinary action against her is part of what appellant alleges to be
a pattern of harassment. Accordingly, the agency's decision to dismiss
allegation 4 on this grounds was improper and is REVERSED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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).
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).
In the present case, the record indicates that appellant believes that she
was subjected to harassment. The various alleged incidents of harassment
concern appellant being told not to complete applications for Hispanic
Christmas casuals; appellant was asked "Why don't you just leave"; she was
accused of turning Christmas casuals away; she was denied annual leave;
and she was informed of a proposed disciplinary action. We note that the
identified incidents occurred over a span of two and one-half months.
Viewing the dismissed allegations in conjunction with the identified
incident in the accepted allegation in the light most favorable to
appellant, we find that appellant stated a cognizable claim under the
EEOC Regulations with regard to the dismissed allegations. See Cervantes
v. United States Postal Service, EEOC Request No. 05930303 (November
12, 1993). Accordingly, the agency's decision to dismiss allegations
1-2 of appellant's complaint for failure to state a claim was improper.
The agency's dismissal of allegations 1, 2, and 4 is hereby REVERSED.
Allegations 1, 2, and 4 are hereby REMANDED for further processing in
accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations (Allegations
1, 2 and 4) in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to the appellant that it has received the remanded allegations
(Allegations 1, 2 and 4) 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:
October 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations