01975730
04-13-1999
Robert L. Council, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert L. Council v. United States Postal Service
01975730
April 13, 1999
Robert L. Council, )
Appellant, )
) Appeal No. 01975730
v. ) Agency No. 4D-230-0087-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On July 14, 1997, appellant filed a timely appeal of a June 27, 1997 final
agency decision dismissing his complaint for failure to state a claim.
In its final decision, the agency framed the allegation of appellant's
February 28, 1997 complaint as whether appellant was discriminated
against on the bases of race (Black) and sex (male) when on January 3,
1997, he suffered an injury as the result of a co-worker's [Person A's]
intentionally aggressive behavior and management failed to discipline
the employee for his conduct. In dismissing the allegation, the agency
stated that appellant was not aggrieved because he had not suffered a
harm or loss.
In his complaint and a narrative accompanying the complaint, appellant
alleged that Person A and Person B, co-workers, exhibited hostile and
aggressive behavior towards him and demeaned him. He stated that since
his transfer to the mailhandler's craft in April 1996, he was constantly
harassed, humiliated and bullied by Person A and, also, that Person B was
verbally and physically hostile towards him. He alleged that on January
3, 1997, in anger directed at him, Person A slammed a fully loaded mail
equipment into the area where he was working, causing a piece of equipment
to run over his foot and result in a physical injury. He also alleged
that since 1996, Person A openly criticized and harassed him repeatedly,
used profane and aggressive language towards him. He further alleged
that Person A, a safety officer, misinformed him about safety and job
function issues. Regarding Person B, appellant alleged that Person B also
used profane and aggressive language towards him. He cited an incident
wherein Person B allegedly tried to slam a security door on his hand.
Appellant further alleged that the ongoing actions left him feeling
threatened and stressed and, although he informed his supervisor about
each incident taken against him by Person A and Person B, the supervisor
failed to take any action.
In his EEO Request for Counseling, appellant described the incident that
occurred on January 3, 1997, and also alleged that he was subjected to
willful and intentional emotional distress, stress, harassment, incidents
of disrespectful and hostile verbal abuse, threats and attempts to injure
him.
On appeal, appellant maintains that he works in an environment that
is hostile, threatening and intimidating and that he is subjected
to harassment. He again identified incidents of alleged harassment
involving Person A and Person B.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may
dismiss a complaint or a portion of a complaint which fails to state a
claim pursuant to 29 C.F.R. �1614.103 or �1614.106(a). An agency shall
accept a complaint from any aggrieved employee who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or a disabling condition.
See 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).
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).
Upon review, we find that the dismissed allegation, standing alone, states
a claim since appellant has alleged that he suffered a physical injury
as a result of the actions of Person A. The alleged action of Person A
affected a term or condition of his employment, and therefore appellant
has stated a cognizable claim under the Regulations. See Jellison
v. Department of Defense, EEOC Appeal No. 01965373 (July 2, 1997)
(allegation of verbal and physical assault states a claim); Mastin
v. U.S. Postal Service, EEOC Appeal No. 01923417 (September 4, 1992)
(allegation of physical assault states a claim).
Moreover, we find that the agency failed to identify all the allegations
raised in appellant's complaint. The record makes it clear that from
the time appellant sought informal counseling, he was alleging that
he was subjected to harassment and a hostile work environment, and
that management, despite being aware of the harassment, failed to take
appropriate action. In his complaint, appellant identified individual
incidents as part of a broader claim of harassment and a hostile work
environment. Nonetheless, the agency defined appellant's complaint as
consisting of a single incident. The Commission has previously held
that an agency should not ignore the "pattern aspect" of a complainant's
allegations and define the issues in a piecemeal manner where an analogous
theme unites the matters complained of. Meaney v. Department of the
Treasury, EEOC Request No. 05940169 (November 3, 1994). The Commission
deems the agency's failure to address these additional allegations to
be tantamount to a dismissal of those matters.
Consistent with our discussion herein, we find that the agency's
decision to dismiss appellant's complaint was improper and is REVERSED.
The complaint of harassment which created a hostile work environment and
the agency's failure to stop the harassment is REMANDED to the agency
for further processing in accordance with this decision and applicable
regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint as defined herein
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 acknowledgement 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:
April 13, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations