01984945_r
06-02-1999
Michael C. Wilkerson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael C. Wilkerson, )
Appellant, )
)
v. ) Appeal No. 01984945
) Agency No. 4G-770-0284-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On June 4, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated May 4, 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 characterized appellant's complaint as alleging that he was
subjected to discrimination on the bases of race (Black), color (Black),
sex (male), and in reprisal for prior EEO activity when:
On November 15, 1997, appellant's supervisor (S1) observed appellant
casing mail and completed an observation form with negative comments; and
Subsequently, S1 made threatening comments.
The agency accepted allegation (1) for processing and dismissed allegation
(2) pursuant to EEOC Regulation 29 U.S.C. �1614.107(a), for failure to
state a claim. Specifically, the agency determined that appellant failed
to show that he suffered harm with respect to the terms, conditions,
or privileges of his employment as a result of S1's comments, and was,
therefore, not aggrieved for the purposes of 29 U.S.C. �1614.
On appeal, appellant contends that the agency erred in framing the
allegations in his complaint. Appellant asserts that the agency failed
to include his allegation that he was forced to transfer to another work
location as a result of the harassment to which he was subjected by S1
and another supervisor (S2). In support of this assertion, appellant
provided copies of his formal complaint and information for pre-complaint
processing, which state, in pertinent part, �I have been trying to bid
out since [S1] and [S2] started to harass me and I have finally been
successful at being transferred to [another work location].�
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 (April 21, 1994).
The Commission notes that the agency failed to address appellant's
allegation concerning his forced transfer to another work location,
and the Commission deems the agency's action to be tantamount to a
dismissal of that matter. Appellant's submissions on appeal reveal
that the EEO Office was notified of the issue in the information for
pre-complaint counseling appellant provided, and he referenced the matter
in his formal complaint. We find, therefore, that the agency erred in
dismissing this allegation.
We note that standing alone, allegation (2) fails to state a claim.
See Backo v. U.S. Postal Service, EEOC Request No. 05960227 (June
10, 1996); Henry v. U.S. Postal Service, EEOC Request No. 05940695
(February 9, 1995). However, in appellant's complaint, he alleged
that he was subjected to conduct by S1 and S2 which created a hostile
work environment. When allegation (2) is viewed in the context of
appellant's hostile work environment complaint, it states a claim.
Consequently, the agency's dismissal of this allegation for failure to
state a claim was improper. See Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 3, 1994).
Accordingly, the agency's decision to dismiss allegation (2) and
appellant's allegation concerning his forced transfer to another location
was improper, and is hereby REVERSED. Those allegations are REMANDED
to the agency for further processing in accordance with this decision
and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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 (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:
June 2, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations