Jan Jaroszynski, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 14, 2005
01a52487 (E.E.O.C. Oct. 14, 2005)

01a52487

10-14-2005

Jan Jaroszynski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jan Jaroszynski v. United States Postal Service

01A52487

October 14, 2005

.

Jan Jaroszynski,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A52487

Agency No. 1F-921-0032-04

DECISION

Complainant filed an appeal with this Commission from the agency's

decision dated January 10, 2005, dismissing his complaint of unlawful

employment discrimination. In his complaint, complainant alleged that he

was subjected to discrimination on the bases of race, national origin,

age, color, disability, and reprisal for prior EEO activity when:

On May 6, 2004, complainant was yelled at by E1 (a co-worker and,

on occasion, a 204b acting supervisor) over the use of the phone for

over half an hour after which complainant suffered a panic attack.

Complainant's supervisor, S1, refused to provide medical attention for

complainant's attack.

In 2002, complainant's schedule was changed from 6:00 am - 2:30 pm,

to 7:00 am - 3:30 pm. Complainant was told he could submit a schedule

change request every week to return to his 6:00 am starting time.

On July 3, 2002, a Manager and an employee from Labor Relations placed

complainant in a new job that required new skills that complainant did

not have, dealing with hazardous materials.

On October 5, 2003, a level 8 employee (E2) told complainant to do

her job. E1 threatened to send complainant home if he did not do E2's

job. E1 also changed complainant's lunch break to 11:00, upsetting

complainant's eating and medication schedule.

On January 16, 2004, E1 ordered complainant to do a job which complainant

had not been trained to do. Complainant refused and E1 yelled at

complainant calling him lazy and unproductive.

On April 28, 2004, E1 came to complainant's work area and asked why

complainant had changed his schedule. E1 also asked complainant's

supervisor and then threatened complainant with consequences.

On November 6, 2002, complainant's supervisor paged complainant and

asked where he had been. When complainant answered that he had been in

the restroom, his supervisor restricted him to his desk, in violation

of his medical restrictions.

On November 6, 2002, complainant became aware that he was not allowed

to work on a holiday.

On March 7, 2003, complainant was shaving in the restroom when E1

threatened him. As E1 was threatening him, a group of complainant's

coworkers watched and later made fun of complainant stating that, �Polka

taking a shower in the bathroom.�

On March 21, 2003, another employee accused complainant of being a liar,

called complainant stupid, idiot, and lazy, and accused complainant of

lying about his on-the-job injury.

On January 1, 2004, complainant thought he was having an aura seizure

and went to the restroom. When he came out, E1 yelled at him in front

of other employees instructing complainant that when he leaves his desk,

complainant is to notify E1 of where he is going.

On January 21, 2001, complainant felt dizzy and believed he had suffered

a seizure. He went to the supervisor restroom because it was the closest

place for complainant to get water. When he came out, E1 questioned

him about his use of the restroom.

On April 1, 2002, E1 followed complainant to see when complainant clocked

out and which door complainant used to exit the building.

In June 2003, E1 micro-managed complainant, monitoring his every move.

On April 18, 2002, E1 asked complainant a series of questions regarding

his use of the phone. E1 instructed complainant that he must punch the

time clock exactly on time. E1 criticized complainant's hygiene causing

complainant stress and a seizure.

On January 25, 2004, E1 and a supervisor asked complainant about returning

to a custodial position. Complainant explained that he could not do

custodial work because of his medical restrictions. E1 later brought

complainant a paper to remove him from his rehabilitation job and place

him back in a custodial position.

On March 15, 2002, E1 ordered complainant to remove his pot of coffee

from his work area and scolded complainant for over 15 minutes.

In February 2002, E1 initiated a rumor that complainant would be removed

from his building monitor position. Complainant was harassed by other

employees and supervisors who called him worthless, lazy, unproductive

and accused him of faking his injury.

On July 17, 2002, complainant was removed from his rehabilitation position

and complainant was reassigned to new duties in a storage room by E1

and another official.

The agency dismissed claims (1) and (6) pursuant to 29 C.F.R. �

1614.107(a)(1) for failure to state a claim. The agency determined

that the incidents described in these claims did not render complainant

aggrieved and that complainant was not harmed by either incident.

The agency dismissed the remaining claims of the complaint and

complainant's overall claim of harassment pursuant to 29 C.F.R. �

1614.107(a)(2) for untimely EEO Counselor contact. The agency noted

that complainant initiated the EEO process on May 7, 2004, and that all

of the incidents, except those noted in claims (1) and (6), occurred

more than 45 days prior to complainant's initial EEO contact.

On appeal, complainant states that after the incident of May 6, 2004,

during which complainant was humiliated and verbally abused by E1,

complainant became distraught and requested that he have no contact with

E1. Complainant claims that he was told this was not possible despite

the fact that E1 is not complainant's supervisor. Complainant claims

that he was then forced to use sick leave in order to remove himself

from E1's harassment which causes complainant undue stress, anxiety,

depression, and high blood pressure, among other health problems.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint 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, .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).

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel action,

within forty-five (45) days of the effective date of the action.

In the instant matter, we find that the incidents described in claims (2)

(schedule change); (3) (reassignment); (4) (work assignment), (8) (denied

holiday work); and (19) (reassignment), describe discrete personnel

actions that have the degree of permanence which should have triggered

complainant's duty to assert his rights. See Jackson v. Department of

the Air Force, EEOC Request No. 05950780 (June 27, 1997). Accordingly,

we find that complainant's May 7, 2004 EEO Counselor contact was untimely

for these incidents and that while they should be considered as background

evidence to complainant's overall claim of harassment, they are properly

dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).

We further find that the incidents described in claim (1), (5), (6), (7),

(9), (10), (11), (12), (13), (14),(15), (16), (17), and (18), describe a

series of events sufficiently severe and pervasive to state an overall

claim of harassment, at least one incident of which fell within the

45-day time limit for contacting an EEO Counselor. Moreover, we find

the record on appeal includes a narrative description of harassment that

complainant alleges to have suffered at the hands of E1, which complainant

states occurred �every other day� for a period of several years, until

complainant felt that he had no choice, after May 6, 2004, but to use

sick leave to escape the harassment to which he was subjected by E1.

We find that the incidents in the claim of harassment (claims (1), (5),

(6), (7), (9), (10), (11), (12), (13), (14), (15), (16), (17), and (18))

were improperly dismissed.

We therefore AFFIRM the agency's dismissal of claims (2), (3), (4), (8),

and (19). We REVERSE the agency's dismissal of (1), (5), (6), (7), (9),

(10), (11), (12), (13), (14), (15), (16), (17), and (18). Claims (1),

(5), (6), (7), (9), (10), (11), (12), (13), (14), (15), (16), (17), and

(18) are REMANDED to the agency for further processing as directed herein.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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 14, 2005

__________________

Date