Denise A. DaMoude v. United States Postal Service 01977066 February 26, 1999 Denise A. DaMoude, ) Appellant, ) ) v. ) Appeal No. 01977066 ) Agency No. 4D-230-0130-97 William J. Henderson, ) Postmaster General, ) United States Postal Service, ) Agency. ) ) DECISION Appellant filed an appeal with this Commission from a final decision of the agency concerning her 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. The final decision was received by appellant on September 5, 1997. The appeal was postmarked September 24, 1997. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)) and is accepted in accordance with EEOC Order No. 960, as amended. On July 8, 1997, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination on the basis of sex. Therein, appellant addressed various incidents of sexual harassment and threats of violence by her co-workers, and a letter of removal issued to her. On August 27, 1997, the agency issued a final decision. Therein, the agency determined that appellant's complaint was comprised of four allegations, that were identified in the following fashion: 1. On November 14, 1996, and December 5, 1996, [appellant] was verbally abused by a [co-worker]. 2. On December 26, 1996, she was sexually harassed by . . . a co-worker. 3. On December 31, 1996, . . . a co-worker threatened her physically. 4. She was issued a letter of removal dated January 17, 1997. The agency dismissed allegations 1 - 3 for failure to state a claim. Specifically, the agency found that an agency Postmaster investigated the incident addressed in allegation 2, which resulted in a notice of removal for the co-worker that was the subject of that allegation. Regarding allegation 3, the agency found that an investigation revealed that both appellant and the co-worker identified in that allegation acted improperly. The agency concluded that no other improper actions were brought to the attention of the investigator. The agency also dismissed allegation 4 for failure to state a claim. Specifically, the agency found that a Step 2 Settlement Agreement dated February 12, 1997, reduced the removal to a seven-day suspension. Citing Gwyn v. USPS, EEOC Request No. 05900844 (October 4, 1990), the agency determined that this allegation was collateral to her grievance. On appeal, appellant argues that she continues to work in a hostile environment. EEOC Regulation 29 C.F.R. §1614.107(a) provides, in relevant part, that an agency shall dismiss a complaint, or portion thereof, that fails to state a claim. 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 determining whether allegations 1 - 3 of appellant's complaint state a claim, the Commission must take into account that appellant claims that the alleged incidents addressed in these allegations form a pattern of harassment on the basis of her sex. By alleging a pattern of harassment, appellant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993. Accordingly, the agency's decision to dismiss allegations 1 - 3 for failure to state a claim was improper and is REVERSED. Allegations 1 - 3 are REMANDED to the agency for further processing in accordance with this decision and applicable regulations. We note that in its final decision, the agency stated that an investigation was conducted into the matters raised in allegations 1 - 3; that one of the co-workers identified in one of the allegations has been disciplined; that appellant and a co-worker both acted improperly in regard to the matter raised in another allegation; and that the investigation revealed no other improper actions. We find that the agency has articulated a reason that goes to the merits of appellant's allegations, and is irrelevant to the procedural issues of whether she has stated a justiciable claim with regard to the matters addressed in allegations 1 - 3. See Ferrazzoli v. USPS, EEOC Request No. 05910642 (August 15, 1991). The Commission also finds that allegation 4 was improperly dismissed for failure to state a claim. Allegation 4 was dismissed as a collateral attack on the grievance process. In Gwyn, cited by the agency in its final decision, the Commission rejected appellant's allegation as a collateral attack on the grievance settlement, i.e., an attempt to contest the outcome or disposition of the grievance. In allegation 4 of the instant case, however, appellant is not contesting the outcome of the grievance. Instead, appellant is alleging that the initial removal action, which was the subject of the grievance, was discriminatorily imposed. The Commission finds that allegation 4 states a claim. Accordingly, the agency's decision to dismiss allegation 4 is REVERSED. This allegation 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 allegations 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 acknowledgment 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: Feb 26, 1999 ____________________________ DATE Ronnie Blumenthal, Director Office of Federal Operations