01a01457
07-11-2000
Lloyd Pugh, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lloyd Pugh, )
Complainant, )
)
v. ) Appeal No. 01A01457
) Agency No. CC801006698
William J. Henderson, ) Hearing No. 320-99-8068X
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On September 1, 1998, complainant filed a class complaint of
discrimination, alleging violations of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. Complainant sought to
represent a class of African-Americans and �non-white� �people of color�
including Native Americans harmed by a training program that included
blatantly racially discriminatory statements. Complainant alleged that
the training program created unfounded fears in supervisors, caused
disparate treatment of class members, and resulted in harassment of
class members.
The complaint was forwarded to a Commission class complaint pilot program
for a certification determination. The program recommended that the
complaint be dismissed for failure to state a claim. The recommendation
did not address class certification issues such as numerosity, typicality,
commonality, or adequacy of representation. The agency adopted the
recommendation without change in its final decision, dated October
19, 1999. Complainant timely appealed the agency's decision, and the
Commission accepts the appeal for review. See 64 Fed. Reg. 37,644, 37,
659 (1999) (to be codified at 29 C.F.R. � 1614.405).
The record reveals that the training program, created by a private
contractor, the Center for Aggression Management, included a statement
that African-American and Native-Americans �look you in the eye when
they are ready for a fight.�
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint
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, .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).
The Commission addressed an identical issue in McArthur v. United States
Postal Service, EEOC Appeal No. 01990854 (January 18, 2000). In that
case, the same training class, involving the same statement, was found
to create a hostile work environment. The Commission stressed that
although isolated remarks ordinarily do not provide adequate support for
a claim of harassment, the training remarks at issue in this complaint
involved blatant racial stereotyping �so severe in their insensitivity,
and pervasive in their distribution, that they create a hostile work
environment.� McArthur v. United States Postal Service, supra. We agree
with the Commission's prior holding.
We note that this claim, unlike the prior complaint, involved a class
complaint. Since neither the certification recommendation nor the
agency's decision addressed whether the complaint satisfied numerosity,
typicality, commonality, and adequacy of representation requirements,
these matters must be addressed on remand in accordance with 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter cited
as 29 C.F.R. � 1614.204).
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the claim is REMANDED
for a certification determination.
ORDER
The agency shall process the remanded class complaint in accordance with
29 C.F.R. � 1614.204. Within fifteen (15) calendar days of the date this
decision becomes final, the agency shall forward the entire complaint
file to an EEOC Administrative Judge to determine whether the complaint
involves adequate numerosity, typicality, commonality, and adequacy
of representation to satisfy the requirements for a class complaint.
The agency must submit a copy of the letter forwarding the file for
certification 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 (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations