01984255
06-16-1999
Lamar W. Sessoms, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lamar W. Sessoms v. United States Postal Service
01984255
June 16, 1999
Lamar W. Sessoms, )
Appellant, )
)
v. ) Appeal No. 01984255
) Agency No. 1-K-221-0040-98
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 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. Appellant received the final agency decision
on April 29, 1998. The appeal was postmarked May 4, 1998. 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 is whether the agency properly dismissed
allegations 5, 6, 11, and 13 of appellant's complaint on the grounds of
failure to state a claim.
2. The second issue presented is whether the agency properly dismissed
allegations 1, 2, 4, and 10 on the grounds that the allegations stated
the same claim that is pending before or has been decided by the agency
or the Commission.
BACKGROUND
Appellant initiated contact with an EEO Counselor on January 8, 1998.
On March 11, 1998, appellant filed a formal EEO complaint wherein he
alleged that he was discriminated against in reprisal for his previous
EEO activity when:
1. On January 28, 1998, he received a Letter of Warning for
Unsatisfactory Performance/Failure To Follow Instructions/Failure To
Maintain Work Schedule.
2. On January 27, 1998, the Manager, Distribution Operations instructed
the Supervisor, Distribution Operations to disapprove appellant's schedule
change request to attend a training class on February 12, 1998, at the
Commission's Washington Field Office. On February 4, 1998, the Manager,
Distribution Operations refused to approve his request for leave without
pay to attend the Commission's training on February 12, 1998. On February
10, 1998, the Supervisor, Distribution Operations disapproved his request
for leave without pay to attend the Commission's training on February 12,
1998.
3. On January 28, 1998, his schedule change request for a March 3,
1998 EEOC settlement conference at 12:00 pm was unreasonably denied.
On January 6, 1998, he was denied the right to represent a union member
at an EEOC settlement conference. On January 13, 1998, he was denied
the right to represent a union member at an EEOC settlement conference.
4. On February 4, 1998, his schedule change request for a March 31,
1998 EEOC settlement conference was unreasonably denied.
5. On February 15, 1998, he requested to file a formal complaint in
the instant matter, but he was not issued his notice of right to file
an individual complaint until February 26, 1998.
6. On an unspecified date, appellant used four (4) hours of his own
time to fill out the complaint forms and the supplement.
7. On January 20, 1998, his schedule change request for a February 17,
1998 EEOC settlement conference at 10:00 am was unreasonably denied.
8. On January 13, 1998, his schedule change request for a February 18,
1998 EEOC settlement conference was unreasonably denied.
9. On January 6, 1998, his schedule change request for a February 17,
1998 EEOC settlement conference at 10:00 am was unreasonably denied.
On or about December 12, 1997, appellant's scheduled change request for
a January 6, 1998 EEOC settlement conference at 9:30 am was unreasonably
denied. On or about December 12, 1997, and January 8, 1997, his schedule
change request for a January 13, 1998 EEOC settlement conference was
unreasonably denied.
10. On January 6, 1998, the Manager, Distribution Operations ordered the
Supervisor, Distribution Operations to harass, humiliate, and embarrass
him by giving him a preliminary disciplinary discussion for not coming
in on a schedule change for January 6, 1998. On January 13, 1998, the
Manager, Distribution Operations ordered the Supervisor, Distribution
Operations to harass, humiliate, and embarrass him by giving him a
preliminary disciplinary discussion for not coming in on a schedule
change for January 13, 1998.
11. On January 5, 1998, he was retaliated against, harassed, and
humiliated when he was forced to punch on a clock that is located in the
Administrative Support Office prior to receiving any time on the clock
for his EEO activities.
12. On February 12, 1997, his schedule change request to begin at
8:30 am for a January 13, 1998 EEOC settlement conference at 9:30
am in Washington, DC was unreasonably denied. On December 19, 1997,
his schedule change request to begin at 8:30 am for a February 5, 1998
EEOC settlement conference in Washington, DC was unreasonably denied.
On December 10, 1997, his schedule change request to begin at 6:00
am for a February 5, 1998 EEOC settlement conference in Washington,
DC was unreasonably denied. On November 14, 1997, his schedule change
request to begin at 1:00 pm for a December 5, 1997 settlement conference
and meeting at the Commission in Washington, DC was unreasonably denied.
On January 13, 1998, his schedule change request to begin at 9:00 am for
a February 24, 1998 settlement conference and meeting at the Commission
in Washington, DC was unreasonably denied.
13. Appellant did not receive his notice of right to file individual
complaint in Agency No. 1-K-221-0146-97 until January 21, 1998.
In its final decision, the agency dismissed allegations 5, 6, 11, and 13
of appellant's complaint on the grounds that these allegations failed to
state a claim. The agency determined with regard to each allegation that
appellant did not submit evidence to demonstrate that he suffered harm or
injury with respect to a term, condition, or privilege of his employment.
With regard to allegations 1, 2, 4, and 10, the agency dismissed these
allegations on the grounds that the allegations state the same claim that
is pending before or has been decided by the agency or the Commission.
The agency determined that these allegations are identical and arise
from the same facts and circumstances as the matter raised in Agency
No 1-K-221-0049-98. Allegations 3, 7, 8, 9, and 12 were accepted for
investigation.
On appeal, appellant contends that the agency has engaged in a pattern
and policy of denying him due process. Appellant argues that the
agency has dismissed valid complaints. According to appellant, he
has alleged harassment by agency officials in the instant complaint,
and that therefore his complaint states a claim under the Commission's
Regulations.
ANALYSIS AND FINDINGS
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).
We find that neither allegation 5 nor allegation 13 states a claim. Both
allegations involve contentions of improper processing. The Commission
has held that an allegation which relates to the processing of a complaint
does not state an independent allegation of employment discrimination.
See Kleinman v. U.S. Postal Service, EEOC Appeal No. 05940579 (September
22, 1994); Story v. U.S. Postal Service, EEOC Appeal No. 01965883
(March 13, 1997). If a complainant is dissatisfied with the processing
of his pending complaint, he should be referred to the agency official
responsible for the quality of complaints processing. Agency officials
should earnestly attempt to resolve dissatisfaction with the complaints
process as early and expeditiously as possible. See EEO MD 110 (4-8).
Furthermore, given the nature of appellant's allegations of improper
processing, we find that the proper method for addressing such matters
would be within the continued processing of the previously filed complaint
or on appeal from the final agency decision issued therein. Any remedial
relief to which appellant would be entitled would necessarily involve
the processing of the underlying complaint. Furthermore, we note that it
appears that appellant filed formal complaints in the cases in question
despite the agency's purported delay in issuing the Notices of the Right
to File. Consequently, the agency's decision to dismiss allegations 5
and 13 of appellant's complaint for failure to state a claim was proper
and is AFFIRMED.
As for allegation 6, we note that appellant has a right to a reasonable
amount of official time to present his complaint and to respond to agency
requests for information, if he otherwise is on duty. Equal Employment
Management Directive (EEO-MD) 110, Chapter 5, section VII. C. at 5-14.
The complaint clearly reflects that appellant is alleging that he was
denied official time. Thus, appellant has alleged a harm for which there
is remedial relief through the EEO process. Accordingly, the agency's
decision to dismiss allegation 6 on the grounds of failure to state a
claim was improper and is REVERSED.
In the present case, appellant alleges that he was subjected to
discriminatory harassment. Allegation 11 states that this harassment
was exemplified in the form of him being required to punch on a clock
that is located in the Administrative Support Office prior to receiving
any time on the clock for his EEO activities. Viewing this incident in
conjunction with the accepted allegations, the denial of official time,
and the incident set forth in allegation 10 in the light most favorable
to appellant, we find that appellant has stated a cognizable claim under
the EEOC Regulations. See Cervantes v. United States Postal Service,
EEOC Request No. 05930303 (November 12, 1993). Accordingly, the agency's
decision to dismiss allegation 11 on the grounds of failure to state a
claim was improper and is REVERSED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident and parties.
See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
The agency dismissed allegations 1, 2, 4, and 10 under this provision on
the grounds that these allegations stated the same claim as that set forth
in Agency No. 1-K-221-0049-98. A review of Agency No. 1-K-221-0049-98
reveals that allegations 1, 2, and 4 were raised in that complaint.
Accordingly, we find that the agency's decision to dismiss allegations 1,
2 and 4 as stating the same claim was proper and is AFFIRMED.
With regard to allegation 10, we find that a review of the other complaint
does not establish that the relevant preliminary disciplinary discussions
were raised as an issue in that complaint. Accordingly, the agency's
decision to dismiss allegation 10 was improper and is REVERSED.
CONCLUSION
The agency's decision to dismiss allegations 1, 2, 4, 5, and 13 is
hereby AFFIRMED. The agency's decision to dismiss allegations 6, 10,
and 11 is hereby REVERSED. Allegations 6, 10, and 11 are hereby REMANDED
to the agency for further processing in accordance with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations (Allegations
6, 10, and 11) in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to the appellant that it has received the remanded allegations
(Allegations 6, 10, and 11) 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 (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. 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