01983623
06-16-1999
Frank L. Farrow, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Frank L. Farrow v. United States Postal Service
01983623
June 16, 1999
Frank L. Farrow, )
Appellant, )
)
v. ) Appeal No. 01983623
) Agency No. 4-H-320-0083-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On April 2, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on March 21, 1998,
pertaining to 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 agency defined appellant's complaint as
alleging that he was subjected to discrimination on the basis of reprisal
for prior EEO activity when on November 6, 1997, appellant became aware
that his EEO cases, and the details of the EEO Settlement Agreement of
1994, had been discussed among the Postmaster and Plant Manager.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for failure to state a claim. Specifically, the
agency found that appellant alleged no concrete harm affecting a term,
condition, or privilege of his employment.
Neither party submitted an argument on appeal.
By letter to agency EEO officials dated November 7, 1997, appellant
alleged, inter alia, that his 1994 settlement agreement had been breached.
In his January 29, 1998 formal complaint, appellant alleged that the
discussions about his EEO activity and settlement agreement created
a hostile work environment, and breached the settlement agreement.
Appellant's allegation was similarly stated in his November 7, 1997
request for counseling, and in the February 5, 1998 Counselor's Report.
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 (Apr. 21, 1994).
It is well-settled that, unless the conduct is very severe, a single
incident or a group of isolated incidents will not be regarded as creating
a discriminatory work environment. See James v. Department of Health
and Human Services, EEOC Request No. 05940327 (Sept. 20, 1994); Walker
v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982). In the instant
complaint, we find that appellant failed to show that he suffered harm
with respect to the terms, conditions or privileges of his employment as
a result of the postmaster and plant manager discussing appellant's EEO
activity and 1994 EEO settlement. Therefore, standing alone, appellant's
allegation fails to state a claim. Consequently, appellant's allegation
was properly dismissed pursuant to 29 C.F.R. �1614.107(a), for failure
to state a claim.
EEOC Regulation 29 C.F.R. �1614.504(b) requires that after appellant
alleges in writing that the agency has failed to comply with the terms of
a settlement agreement, the agency must determine, in writing, whether
the terms of a settlement agreement have been breached. The Commission
finds that appellant gave notice of the agency's non-compliance with
the settlement in his November 7, 1997 letter. Further, the Commission
notes that it has held that a violation of the confidentiality provision
of a settlement agreement constitutes a breach of the agreement.
See Lyons v. Department of Veteran's Affairs, EEOC Appeal No. 01976838
(Nov. 11, 1998) (appellant entitled to reinstatement of complaint when
confidentiality of settlement agreement breached). However, the agency
has failed to address this issue. Further, the record does not include
a copy of the 1994 settlement agreement; therefore the Commission is
unable to determine whether the agreement has been breached. Accordingly,
the agency must address appellant's allegation of breach on remand.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's allegation of
hostile work environment discrimination is AFFIRMED. However, appellant's
allegation is REMANDED to the agency for a determination of whether the
1994 settlement agreement was breached.
ORDER
The agency is ORDERED to perform the following:
Within 30 days of the date this decision becomes final, the agency shall
perform a supplemental investigation to determine whether the provisions
of a 1994 Settlement Agreement between appellant and the agency have
been breached. This investigation shall include, but is not limited to:
Obtaining an affidavit or statement from the allegedly responsible
agency officials regarding the exact nature and content of any and all
discussions of the 1994 settlement agreement;
Obtaining a copy of the 1994 settlement agreement and including it with
the present case file.
Thereafter, the agency shall determine whether the provisions of the
1994 settlement agreement were breached. Within forty-five (45) days
of the date this decision becomes final, the agency shall issue a new
FAD determining that no breach occurred and explaining the grounds for
its decision, or shall reinstate appellant's complaint(s) and issue a
notice of processing of the complaint(s) underlying the 1994 settlement
agreement.
The agency shall send a copy of the new FAD or notice of processing to
the Compliance Officer as referenced herein.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. If you file
a request to reconsider and also file a civil action, 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:
June 16, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations