01a44417
10-20-2004
Carol Paladino, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carol Paladino v. United States Postal Service
01A44417
October 20, 2004
.
Carol Paladino,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44417
Agency No. 4-A-117-0143-03
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated May 14, 2004, dismissing her formal complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The Commission accepts the appeal. See 29 C.F.R. � 1614.405.
On September 4, 2003, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
In her April 5, 2004 formal complaint, as framed by the agency,
complainant claimed discrimination on the bases of race (Hispanic), sex
(female), and disability (pregnancy),<1> when:
On August 8, 2003, complainant's supervisor (S) followed her and stood
behind her;
On September 4, 2003, S denied complainant's request to use the phone,
listened to her conversation with her shop steward, and told her shop
steward that she should not get 8 hours of work per day;
On September 10, 2003, complainant was questioned regarding her office
time;
On October 3, 2003, S told complainant that in order to get 8 hours of
work, she would have to prove that she can �rack standard;�
On unspecified dates, complainant was refused "8 hour work days;" and
On unspecified dates, male carriers were permitted to come in early and
leave early.
In its final decision, the agency dismissed claims 1 - 4 for failure
to state a claim. Specifically, the agency determined that complainant
was not rendered aggrieved by these incidents, and that they otherwise
did not state an actionable claim of harassment.
The agency dismissed claims 5 and 6 on the grounds of untimely EEO
Counselor contact, as well as for failure to state a claim, based on
complainant's failure to provide dates and a description of the incidents
at issue. The agency additionally determined that complainant was not
entitled to an award of compensatory damages because of the dismissal
of her formal complaint.
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 determining whether a harassment
complaint states a claim in cases where a complainant had not alleged
disparate treatment regarding a specific term, condition, or privilege of
employment, the Commission has repeatedly examined whether a complainant's
harassment claims, when considered together and assumed to be true,
were sufficient to state a hostile or abusive work environment claim.
See Estate of Routson v. National Aeronautics and Space Administration,
EEOC Request No. 05970388 (February 26, 1999). 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).
The Commission determines that complainant's entire complaint is most
properly viewed as a harassment claim. As such, with respect to the
incidents in claims 1 - 4, we determine that complainant describes
S's actions as "stalking." Complainant indicated that during the time
period at issue, S followed her everywhere, both inside and outside the
facility; subjected her work to unwarranted scrutiny and criticism;
improperly pressured her regarding her performance; and inappropriately
intruded into conversations with her union steward. Complainant stated
that she was not being inspected or counted during this time, and that S
had no justification for shadowing her movements or scrutinizing her work.
In claim 5, complainant further claimed that she was not permitted to
work an 8 hour day. Complainant noted that her union steward informed
her that the Postmaster and S refused to allow her to work 8 hours
because she threatened to sue the agency if she miscarried her baby, a
statement which complainant denies. In claim 6, complainant claimed that
she is continuously treated less favorably compared to male carriers.
Complainant claimed that that, unlike herself, the male carriers could
start and leave early, "miss scan points," and were not required to
deliver their standard mail. When viewed together, we determine that
S's actions were not merely work related, and isolated in nature, as
claimed by the agency, but rather state a claim of harassment.
Regarding the agency's dismissal of claim 5, we find that the agency erred
in determining that complainant failed to specify dates. Specifically,
in a pre-complaint counseling statement dated October 1, 2003, submitted
during the course of EEO counseling, complainant identifies the dates at
issue (October 1, 2, 3, 6, 7, 2003), and the number of hours she was
not permitted to work each of these days, instead being placed in Leave
Without Pay (LWOP) status. Because complainant's initial date of EEO
Counselor contact was September 4, 2003, and counseling was on-going
at the time these incidents occurred, we find that the agency improperly
dismissed claim 5 on the grounds of timely EEO Counselor contact.
We additionally note that the EEO Counselor's report reflects that
complainant withdrew claim 5 because a new Postmaster paid her administer
leave for the LWOP used, which apparently eventually totaled 103 hours
(suggesting that additional days may be involved). Nonetheless,
in her formal complaint, complainant again raises this claim, and she
requested compensatory damages. Therefore, given that complainant raises
this claim in her formal complaint, we find that it is not "withdrawn."
We additionally find that the agency's refusal to allow complainant to
work an 8-hour day, for a total of 103 hours of LWOP, states a claim,
and the agency erred in dismissing claim 5 for this reason. Furthermore,
because complainant requests compensatory damages, even to the extent
that she may have later been reimbursed for the LWOP, this claim may not
be viewed as moot because the agency did not address her entitlement to
these damages.
Regarding claim 6, although she does not specify dates, we find that
complainant stated that male carriers are permitted to start and
leave early, "miss scan points," and are not required to deliver their
standard mail, insinuating that she has been denied this same flexibility.
Complainant also claims that this occurs continuously. As such, we find
that the agency improperly dismissed claim 6 on the grounds of untimely
EEO Counselor contact and failure to state a claim.
Accordingly, for the reasons set forth above, we REVERSE the agency's
dismissal of the captioned complaint as identified herein, and we REMAND
the complaint to the agency for further processing in accordance with
the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims, as framed herein,
including complainant's harassment claim, 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 20, 2004
__________________
Date
1Although complainant identifies her
pregnancy as a "disability," discrimination based on pregnancy is a
form of discrimination based on sex, and, therefore violates Title
VII. See Appendix to 29 C.F.R. Part 1604, Questions and Answers on
the Pregnancy Discrimination Act. See also EEOC Compliance Manual on
Definition of the Term"Disability", No. 915.002 at 3 n.10 (March 14,
1995) (Pregnancy is not a "disability" for purposes of the Americans with
Disabilities Act, and allegations of employment discrimination based on
pregnancy are covered by Title VII).