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