01a02904-01a04172
11-17-2000
Ricky A. Muzny, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ricky A. Muzny v. United States Postal Service
01A02904, 01A04172, 01A04173
11-17-00
.
Ricky A. Muzny,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02904,
01A04172,
01A04173
Agency No. 4G-730-0034-00,
4G-730-0051-00,
4G-730-0061-00
DECISION
INTRODUCTION
Ricky A. Muzny (the complainant) timely filed appeals with the Equal
Employment Opportunity Commission (the Commission) from final agency
decisions (FADs) concerning his complaints 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.<1> The Commission hereby accepts
the appeals in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
claims for failure to state a claim.
BACKGROUND
Factual History: Complaints A, B and C
Complainant was employed by the agency as a Carrier Technician, Q-06,
at the agency's Westside Station facility in Oklahoma City, Oklahoma.
In April 1999, he sought EEO counseling, regarding a denial of overtime
request, and subsequently he and the agency signed a settlement agreement
(SA) on May 20, 1999. The SA specified that complainant �will not be
questioned on his 3996 [a form for a letter carrier to request auxiliary
help/overtime] when he puts down that he is ill except when medical
conditions may impair work safety.� Complainant has a chronic health
condition, and because of the medication he is taking he periodically
experiences �fatigue, nausea, and vomiting,� according to a letter
from his treating physician. That letter also specifies that when
he experiences these side effects, his �work schedule may need to be
adjusted.� On November 6, 1999, complainant sought EEO counseling
regarding a violation of the SA and another claim. The allegation of
breach of the SA was handled in agency number 4G-730-0114-99, subject of
EEOC Appeal No. 01A02488. Complainant claimed in subsequent complaints
that the agency was subjecting him to harassment based on a hostile work
environment, and he detailed the following incidents as illustrative of
that discrimination:
1) on November 6, 1999, the carrier supervisor (MO-1) breached his SA
by questioning his need for overtime (EEOC Appeal No. 01A02488);
2) on November 15, 1999, the station manager (MO-2) stated on the work
room floor �that it makes him sick to talk to [complainant];�
3) on December 8, 1999, MO-1 stated to complainant that he �has been
waiting to nail [complainant];�
4) on December 15, 1999, MO-1 incorrectly added 8 hours to complainant's
total on the Overtime Desired List;
5) on December 15, 1999, an acting supervisor (MO-3) refused to give
complainant his 3996 form back, even though other carriers were given
theirs back on this day;
6) on December 18, 1999, MO-2 asked MO-1 if complainant �was beginning
to crack;�
7) on December 24, 1999, MO-1, MO-2, MO-3 and other agency employees
were talking on the work room floor about trying to have complainant
removed from his job, expressing their frustrations that he hadn't been
removed, and, more specifically, MO-3 was expressing her disappointment
that �downtown� didn't agree with their [the managers'] proposal that
complainant was unable to perform the duties of his job;
8) on December 29, 1999, MO-1 conducted an �investigative interview� with
complainant regarding the delivery of his route when he �didn't carry
the rest of the walking splits when he broke down� even though there
were no walking splits to carry on the remaining portion of his route;
complainant claimed being subjected to this sort of interview was not
normal procedure when other carriers had similar difficulties on their
routes; and
9) on December 30, 1999, complainant claimed to have heard MO-1 state
on the phone to someone, �there is going to be a shooting around here.�
Procedural History: Complaint A
Complainant initiated EEO Counseling on November 15, 1999. He filed
formal complaint number 4G-730-0034-00, EEOC Appeal No. 01A02904,
on January 4, 2000, claiming discrimination and harassment on the
basis of physical disability and encompassing Issues 1 through 3.
Issue 1 became the subject of agency number 4G-730-0114-99, EEOC Appeal
No. 01A02488. The agency issued FAD-1 on Issues 2 and 3 on February 9,
2000, dismissing both claims for failure to state a claim in that the
complainant had not shown that he was aggrieved.
Complaint B
Complainant initiated EEO Counseling on December 26, 1999. He filed
formal complaint number 4G-730-0051-00, EEOC Appeal No. 01A04172,
on March 3, 2000, claiming discrimination and harassment on the bases
of sex (male), physical disability, and reprisal (prior EEO activity),
and encompassing Issues 4 through 7 and 9. The agency issued FAD-2 on
Issues 4 through 7 on April 25, 2000, dismissing the claims for failure to
state a claim in that the complainant had not shown that he was aggrieved.
It did not address Issue 9.
Complaint C
Complainant initiated EEO Counseling on January 1, 2000. He filed
formal complaint number 4G-730-0061-00, EEOC Appeal No. 01A04173,
on April 10, 2000, claiming discrimination on the basis of reprisal
(prior EEO activity) and encompassing Issue 8. The agency issued FAD-3
on Issue 8 on May 9, 2000, dismissing the claim for failure to state a
claim in that the complainant had not shown that he was aggrieved.
ANALYSIS AND FINDINGS
Initially, we note that we are consolidating complainant's appeals under
the authority granted the Commission in EEOC Regulation 29 C.F.R. �
1614.606.
On review of the records of each appeal, we find that the agency
improperly analyzed each incident by itself to determine whether
complainant stated a claim in his complaints. The Commission has
previously held that when confronted with claims involving multiple
allegations, an agency should not ignore the "pattern aspect" of a
complainant's allegations and define the issues in a piecemeal manner
where an underlying theme unites the matters complained of. Meaney
v. Department of the Treasury, EEOC Request No. 05940169 (November 3,
1994); Ferguson v. Department of Justice, EEOC Request No. 05970792
(March 30, 1999); Drake v. Department of the Air Force, EEOC Request
No. 05970689 (March 29, 1999). We find that complainant's complaints,
when taken together, allege that he was subjected to a pattern of
harassment consisting of a hostile work environment, and provide incidents
to illustrate his work conditions, based on his physical disability, his
sex and retaliation. In determining whether a harassment complaint states
a claim in cases where a complainant had not alleged disparate treatment
regarding a specific term, condition, or privilege of employment, the
Commission has repeatedly examined whether a complainant's harassment
claims, when considered together and assumed to be true, were sufficient
to state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,
the trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
Complainant asserts that MO-1, MO-2 and MO-3 engaged in a pattern of
behavior toward complainant that was designed to intimidate him and
subject him to a heightened level of supervision, creating a hostile and
offensive work environment. In fact, complainant has been on extended
sick leave on his doctor's orders due to the stress caused by his work
environment. The Commission finds, assuming complainant's contentions
are true, that he states an actionable claim of harassment on the
bases of physical disability, sex and reprisal, and that complainant's
complaints were improperly dismissed pursuant to EEOC Regulation 29
C.F.R. � 1614.107(a)(1).
On remand, we find that the complaints should be consolidated for
investigation and processing in that they may form a pattern of
incidents that are evidence of a hostile work environment based on
complainant's physical disability, sex and reprisal. Additionally, the
Commission's finding that MO-1 breached complainant's SA, the subject of
EEOC Appeal No. 01A02488, should be investigated as background evidence
to the claims.
CONCLUSION
Accordingly, the agency's final decisions dismissing complainant's
complaints for failure to state a claim are REVERSED. The complaints
are hereby REMANDED for further processing in accordance with the Order
below.
ORDER
The agency is ORDERED to process the consolidated remanded claims in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__11-17-00________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.