01a00049
03-23-2001
Sergio Orzinski, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sergio Orzinski v. United States Postal Service
01A00049
03-23-01
.
Sergio Orzinski,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00049
Agency No. 1F-941-0072-99
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) 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. Complainant received the final
agency decision on September 10, 1999. The appeal was postmarked on
September 30, 1999. Accordingly, the appeal is timely pursuant to 29
C.F.R. � 1614.402(a), and is accepted in accordance with 29 C.F.R. �
1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
After timely contacting an EEO Counselor, complainant filed a formal
complaint on August 31, 1999, alleging that he was subjected to a hostile
working environment in reprisal for his prior Title VII EEO activity
when:
A responsible official from a previous EEO complaint was assigned as
his acting supervisor on May 17, 1999.
He was directed to go to the Employee Assistance Program (EAP), which
caused him to suffer emotional distress.
The FAD dismissed complainant's claim for failure to state a claim.
Specifically, the FAD indicated that the complainant did not establish
that he was aggrieved or that its actions caused him to suffer any
measurable personal harm.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides that the agency
shall dismiss a complaint that fails to state a claim under �1614.103
or �1614.106(a). 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).
In his formal complaint, complainant alleged that he was being subject
to a pattern and practice of harassment. 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.
Here complainant alleged that the harassment he was subjected to by
the responsible officials altered his work environment and caused him
emotional distress. Further, the language on complainant's complaint
form suggested that there were more instances of harassment than those
listed on the form.
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). In allegation (1), the complainant alleged, without
elaborating, that his acting supervisor, whom he had testified against
in a previous complaint, conspired to retaliate against and harass him.
On appeal, complainant clarifies allegation (2), and alleges that he
was directed to the agency's EAP program after being falsely accused of
threatening his supervisor, and that this caused him emotional distress.
Complainant also argued that he had this information when he initially
sought counseling, but that the agency did not contact him for any
additional information. The evidence on the record supports a conclusion
that complainant had additional facts which would support his claim,
and that the agency had an opportunity to elicit this information prior
to making its decision, but failed to do so. Therefore, the agency may
not now find that complainant failed to state a claim.
We find that given the two allegations of harassment above, along with
the additional instances stated on appeal, including complainant's
leave requests being denied repeatedly since the hearing on the prior
EEO claim, and being told by his previous supervisor that he should �bid
out of the unit or else he (the supervisor) would see complainant out the
door,� complainant is aggrieved and has stated a claim for harassment in
reprisal for his prior EEO activity. Therefore, the agency decision to
dismiss the instant complaint for failure to state a claim was improper.
CONCLUSION
The agency decision to dismiss complainant's claim was improper and is
REVERSED. This claim is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER (E0900)
The agency is ORDERED to process the remanded claim of harassment 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.
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
__03-23-01________________
Date