01A11134
10-11-2001
Thomas A. Derrig, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas A. Derrig v. United States Postal Service
01A11134, 01A11135, 01A11136
October 11, 2001
.
Thomas A. Derrig,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A11134, 01A11135, 01A11136
Agency Nos. 1-H-326-0033-00, 1-H-326-0029-00, 1-H-326-0028-00
DECISION
Complainant filed timely appeals with this Commission from three agency
decisions dated October 20, 2000, dismissing his three complaints of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In Agency Case No. 1-H-326-0028-00, the agency defined complainant's
complaint as alleging that complainant was subjected to discrimination
on the bases of race/national origin (Italian/Irish) and in reprisal
for prior EEO activity when:
On April 10, 2000, complainant was harassed and talked to harshly by
Person A.<1>
In Agency Case No. 1-H-326-0029-00, complainant alleged that he was
subjected to discrimination on the bases of race/national origin
(Italian/Irish) and in reprisal for prior EEO activity when:
On March 17, April 11, and April 13, 2000, complainant was given official
discussions by Person B.<2>
In Agency Case No. 1-H-326-0033-00, complainant alleged that he was
subjected to discrimination on the bases of race/national origin
(Italian/Irish), sex (male), and in reprisal for prior EEO activity when:
On April 27, 2000, and May 1, 2000, complainant was referred to EAP by
Person B.
The agency dismissed each claim separately pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
On appeal, complainant contends that he has been continuously subjected
to a hostile work environment.
Initially, we note that the agency failed to properly define the subject
complaints. Clearly, complainant alleged that the incidents identified
in his complaints were part of and constituted harassment, which created
a hostile work environment. 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). By separating
the claim of harassment into separate claims the agency has improperly
fragmented the subject complaints.
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.
In the present case, complainant alleges that he was subjected to
harassment by the Station Manager and the Acting Manager. The alleged
harassment consisted of various remarks, actions, and conduct of the
managers occurring over approximately a two-month span. Considering
that the identified actions were all perpetrated by the same two agency
officials, and viewing the identified remarks and comments in the light
most favorable to complainant, we find that complainant has stated a
cognizable claim under the EEOC Regulations. See Cervantes v. United
States Postal Service, EEOC Request No. 05930303 (November 12, 1993).
Accordingly, the agency's decisions to dismiss complainant's complaints
are REVERSED and the complaints are REMANDED to be treated as one claim of
harassment and for further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the 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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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
October 11, 2001
__________________
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
______________________________
1In his formal complaint, complainant stated that Person A told
complainant that: �you are a strange breed,� �you are always stirring
the shit,��you are trouble,� �no one can stand you,� �no one can stand
working with you,� �you are unproductive,� �don't bother my people,� �stop
harassing my employees,� �no one has a good word to say about you,� and
�you better get your act together or you are going to get fired.�
2In his formal complaint, complainant stated that Person B was constantly
calling him into the office on a daily basis, calling him on the phone
at the station, in the hallway, and outside, conducting official and
unofficial discussions. Complainant stated that Person B would ask to
see complainant before clocking into work and after clocking off work.