01a52517
11-08-2005
Damita J. Fulghen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Damita J. Fulghen v. United States Postal Service
01A52517
November 8, 2005
.
Damita J. Fulghen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52517
Agency Nos. 4J-481-0013-05, 4J-481-0043-05
DECISION
Complainant filed two timely appeals with this Commission from two
final agency decisions dated February 7, 2005, and February 10, 2005,
dismissing her complaints of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
In her initial formal EEO complaint, filed on January 29, 2005 (identified
as Agency Case No. 4J-481-0013-05), complainant claimed that she was the
victim of unlawful employment discrimination on the basis of religion.
In its final decision for Agency Case No. 4J-481-0013-05, dated February
7, 2005, the agency determined that complainant's EEO complaint was
comprised of the following claim:
on October 27, 2004, [complainant was] placed in a non-duty status because
[she] was reading [her] Bible on the clock and did not want to work.
The agency dismissed complainant's complaint on the grounds that her
complaint was untimely filed. Specifically, the agency stated that
�the Notice of Right to File...was mailed via [c]ertified, [r]eturn
[r]eceipt mail on December 16, 2004. The record indicates that notices
were left regarding the certified mail piece on December 17 and 22,
2004, and on January 3, 2005. The letter was returned to the EEO office,
as unclaimed.�
In addition, the agency stated that complainant filed her formal complaint
on January 29, 2005, and that her complaint should have been filed by
January 11, 2005, in order for it to be deemed timely.
Complainant filed a second EEO complaint on February 4, 2005 (identified
as Agency Case No. 4J-481-0043-05). Therein, complainant claimed that
she was subjected to discrimination in reprisal for prior EEO activity.
In its final decision for Agency Case No. 4J-481-0043-05, dated February
10, 2005, the agency determined that complainant's complaint was comprised
of the following claim:
on December 21, 2004, [complainant] won a grievance settlement agreement,
including back pay, and [a named Acting Manager], would only agree to
120 hours though [she was] off work for 160 hours.
The agency dismissed complainant's complaint for failure to state a
claim. Specifically, the agency stated that complainant attempted to
collaterally attack the outcome of a grievance. The agency asserted that
�there was a Step 2 Settlement Agreement dated December 16, 2004...The
Step 2 Settlement Agreement stated �Grievant will be paid 120 hours
regular pay only for the period from October 27, 2004 to November 23,
2004. Payment is for emergency placement time only.'�
On appeal, complainant states that the agency improperly dismissed
both captioned complaints. Regarding Agency Case No. 4J-481-0013-05,
complainant states that �[she] never received the first Right to File a
formal complaint in the case of religion. The certified mail piece was
returned to sender and endorsed as unclaimed. I explained to [a named
EEO manager, M1] that during the period she said she mailed this form,
I had picked up other pieces of certified mail at my local [post office]
and even inquired if I had other certified mail, but I was told no.�
Regarding Agency Case No. 4J-481-0043-05, complainant, in her various
submissions to the Commission, asserts that the agency improperly framed
her claim. Specifically, complainant asserts that her claim involves
a 14-day suspension.
Finally, complainant, on appeal, asserts that she requested the agency
to amend her initial complaint, Agency Case No. 4J-481-0013-05, to
include a claim of harassment. Specifically, complainant asserts that
she requested the agency to amend her complaint in November 2004.
Agency Case No. 4J-481-0013-05
The agency improperly dismissed this complaint on the grounds that it
was untimely filed. EEOC Regulation 29 C.F.R. � 1614.106(b) requires
the filing of a written complaint with an appropriate agency official
within fifteen (15) calendar days after the date of receipt of the notice
of the right to file a formal complaint.
The record supports complainant's assertion that she did not receive the
agency's Notice of Right to File dated December 16, 2004. The record
contains a copy of an envelope addressed to complainant and stamped
�unclaimed;� however, the record contains a copy of the return receipt
card reflecting that neither complainant nor anyone else signed for
delivery of the Notice of Right to File dated December 16, 2004.
In addition, the record contains a copy of a letter to complainant
dated January 27, 2005, from an EEO Dispute Resolution Specialist (E1).
Therein, E1 states that �per [complainant's] request of January 26, 2005,
enclosed is a copy of your appeal rights which were originally mailed to
[her] on December 16, 2004 via [certified mail]. The entire appeals right
package was returned to this office and stamped unclaimed on January
7, 2005 and your case was officially closed at that time.� The record
reflects that on January 29, 2005, complainant filed her formal complaint.
Based on these circumstances, we find that complainant timely filed her
formal complaint.
Agency Case No. 4J-481-0043-05
The agency improperly framed complainant's claim for Agency Case
No. 4J-481-0043-05. In a letter to the Commission dated March 11, 2004,
complainant stated that her claim is that the agency retaliated against
her when she was suspended for 14 days. Upon review of complainant's
formal complaint and her pre-complaint documents, we agree that
complainant claimed retaliation when she was suspended for 14 days.
The record contains a copy of the EEO Dispute Resolution Specialist's
Inquiry Report dated February 7, 2005. Therein, the EEO Dispute
Resolution Specialist identifies complainant's claim as follows: �On
December 21, 2004, [complainant] received a copy of a 14-day suspension
from [a named agency manager]...[complainant] states the infractions
listed on the 14-day suspension [were] listed on [the] emergency placement
dated October 27, 2004. The emergency placement was settled through
the grievance procedure...�
The record also contains a copy of the formal complaint for Agency
Case No. 4J-481-0043-05. Therein, complainant sets forth her claim as
follows: �On October 27, 2004, I was placed on Emergency Placement
...for allegedly threatening [a named Manager]. [The manager] kept me
out of work for 160 hours...I won my grievance settlement including
back pay. She would only agree to 120 [hours]...On December 9, 2004,
I mailed a letter to [a named Postmaster] letting him know about the
unjust removal and how it made me feel. [The Postmaster] notified [the
manager] about it....After I was cleared of all false accusations,
I was suspended for 14 days on the same charges I was cleared of.�
Based on a fair reading of the record, we find that complainant is
claiming retaliation when she was suspended for 14 days. The Commission
notes that complainant makes reference to a grievance settlement
agreement; however, we find that this reference was merely provided as
background information regarding the suspension.
We further find that the agency improperly dismissed this complaint
for failure to state a claim. The only questions for an agency to
consider in determining whether a complaint states a claim are: (1)
whether complainant is an aggrieved employee; and (2) whether complainant
raises employment discrimination on a basis covered by EEO statutes.
If these questions are answered in the affirmative, an agency must accept
the complaint for processing regardless of its judgment of the merits.
See Odoski v. Department of Energy, EEOC Appeal No. 01901496 (April 16,
1990). In this matter, complainant alleges that she was suspended in
retaliation for prior protected activity; therefore, she has stated a
cognizable claim.
Request to Amend
On appeal, complainant asserts that in November 2004, (prior to filing
the instant appeals), she requested the agency amend her initial EEO
complaint to include a claim of harassment. The record contains a
letter to the agency from complainant dated November 2004. Therein,
complainant requested that her first complaint be amended to include a
claim of harassment. Complainant further states, in the November 2004
letter, that certain agency officials have refused to �cooperate with the
union� and that a manager made untrue statements about her. The record
is devoid of evidence that the agency responded to complainant's November
2004 letter.
In her numerous statements to the Commission, complainant asserts
additional alleged incidents of harassment including: that she was
denied access to her work facility and the agency's parking facility,
and that the agency initially denied her medical clearance.<1>
The alleged incidents set forth in complainant's November 2004 letter
are not sufficiently severe or pervasive to state a claim of harassment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). Furthermore, we decline to address herein the additional alleged
incidents of harassment which complainant sets forth for the first time on
appeal in her various submissions to the Commission. Moreover, we note
that the agency properly informed complainant via letter dated March 7,
2005, that if she wishes to pursue these additional alleged discriminatory
incidents, she should contact the EEO office to initiate counseling.
Accordingly, we REVERSE the agency's final decisions dated February 7,
2005, and February 10, 2005, dismissing complainant's complaints and we
REMAND these matters to the agency for further processing in accordance
with the ORDER below.
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 (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
November 8, 2005
__________________
Date
1We note that the record contains a copy of a letter from
the agency to complainant dated March 7, 2005, subsequent to
complainant's appeals to the Commission. Therein, the agency
states that it will not amend complainant's complaint because
it is currently on appeal before the Commission. In addition,
the agency informed complainant that if she wishes to further
pursue these alleged discriminatory incidents, she should contact
the agency's EEO office for counseling.