01982400_r
03-16-1999
Manuel R. Muro, Sr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Manuel R. Muro, Sr., )
Appellant, )
) Appeal No. 01982400
v. ) Agency No. I-H-331-0138-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On February 2, 1998, appellant filed a timely appeal of a July 17, 1997
final agency decision, received by him on January 12, 1998. The agency
dismissed the complaint for failure to state a claim, pursuant to 29
C.F.R. �1614.107(a).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
In his November 3, 1997 complaint, appellant alleged that on July 21,
1997, the Senior Training Specialist approached him at the Miami training
range for drivers and reprimanded him in front of several trainees
in an unprofessional manner. In his Information for Precomplaint
Counseling and on appeal, appellant alleged that he was being harassed
by the Senior Training Specialist. On appeal, appellant identified
six other discrimination complaints that he alleges he filed against
the Senior Training Specialist. Specifically, he noted two complaints
on October 8, 1996 (Agency Nos. 4-H-330-0049-97 and 4-H-330-0057-97 -
told not to hang up agency certificates and work schedule changed);
one incident on October 16, 1996 (not wanting to work with other
driver/instructor examiners); an incident on March 31, 1997 (Agency
No. 4-H-330-0336-97 - required to sign out); an incident on October 2,
1997 (Agency No. 4-H-330-0060-98 - scheduled for employee assistance
counseling); and an incident on November 24, 1997 (instructed to train
others to become driver/instructor examiners).
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). Allegations which may not, standing
alone, demonstrate an injury or harm, may, when considered in conjunction
with already pending complaints, state a claim for relief for a pattern
of conduct demonstrating harassment. See Reda v. U.S. Postal Service,
EEOC Request No. 05950934 (March 7, 1996) (dismissal of two minor
allegations reversed where complainant had filed 12 appeals with the
Commission encompassing 21 EEO complaints).
In the case at hand, appellant alleged that he is being subjected to
discriminatory harassment by the same Senior Training Specialist and
alleged that he filed other EEO complaints against the same individual.
Clearly, the agency is aware that appellant has other complaints pending
concerning actions by the same Senior Training Specialist. Accordingly,
in view of appellant's contention that he is being subjected to harassment
by the same individual through various actions, including the allegation
raised herein, we find that the present complaint must be remanded to
the agency for consolidation with appellant's pending complaints.
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to state a claim was improper and is REVERSED. The complaint is
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The agency, within fifteen (15) calendar days of the date this decision
becomes final, is ORDERED to notify appellant that the complaint is being
consolidated with appellant's pending complaints (Agency Nos. 4-H-0057-97,
4-H-330-0336-97, and 4-H-330-0060-98<1>) for further processing.
The agency is also hereby advised to consider consolidation of any other
complaints filed by appellant regarding alleged discriminatory actions
by the identified Senior Training Specialist.
A copy of the agency's notice of consolidation 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:
March 16, 1999
DATE Ronnie Blumenthal, Director
1We note that Agency No. 4-H-330-0049-97 was resolved by settlement.
Presently, appellant's allegations of breach of that settlement are
pending on appeal before the Commission. EEOC Appeal No. 01983054.