01a24645
03-24-2003
Elaine P. Pearman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elaine P. Pearmain v. United States Postal Service
01A24645
March 24, 2003
.
Elaine P. Pearman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24645
Agency No. 4E-970-0040-20
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) and (a)(2).
On December 28, 2001, complainant initiated contact with an EEO Counselor.
After informal efforts to resolve her concerns were unsuccessful,
complainant filed a formal complaint on March 28, 2002.
In its final decision, the agency characterized complainant's March 28,
2002 complaint as alleging that complainant was the victim of unlawful
employment discrimination on the bases of sex, age, and disability when
she was harassed by the Postmaster when:
On September 15-18, 2001, the Postmaster withheld approval of her
request for leave for medical appointments;
On September 26, 2001, he told her that diabetes should not be covered
under the Family Medical Leave Act (FMLA);
On October 2, 2001, he threatened to fire her;
In November 2001, he threatened to place her in �AWOL� status if she
did not show up to work; and
On December 19, 2001, he issued her a Letter of Warning (LOW) for failure
to follow instructions, which he reduced to an official discussion.
In its July 29, 2002 final decision, the agency dismissed claim (1) for
untimely EEO Counselor contact. The agency determined that complainant's
December 28, 2001 EEO Counselor contact was more than forty-five days
beyond the dates of the claimed incidents (September 15 - 18, 2001).
Regarding the dismissal of claims (2) - (5), the agency determined that
complainant was not aggrieved by the Postmaster's remarks in claims
(2) and (3);<1> that claim (3), alternatively, and claim (4) merely
addressed proposed agency actions; and that the LOW identified in claim
(5) was reduced to a discussion. The agency also found that complainant
addressed isolated incidents that were insufficient to show harassment.
The Commission notes that in her formal complaint, complainant claimed
that she was subjected to �continued, ongoing threats and warnings that
I could be fired,� and loud threats �regarding my need to use sick leave
for doctor's appointments and medical needs,� as well as a �reluctance
to approve requests for med[ical] appointments and FMLA coverage.� On
appeal, complainant also asserts that �the agency erred by considering my
complaint as being about a series of unconnected events,� and that she
�intended [her] complaint to be about the hostile working environment
created by my supervisor.�
Upon review of the entire record, we find that the agency's dismissal of
claim (1) for untimely EEO Counselor contact and the remaining claims
for failure to state a claim and alleging that proposed agency actions
were discriminatory, was improper. The Commission determines that the
agency improperly fragmented complainant's complaint. We also find that
claims (1) - (5), when viewed together in the light most favorable to
complainant (as examples of her supervisor's harassment), state a claim
of alleged hostile work environment. See Cervantes v. USPS, EEOC Request
No. 05930303 (November 12, 1993).
We therefore determine that complainant has set forth a cognizable
claim of an alleged hostile work environment due to harassment by the
agency when it purportedly took a series of actions against complainant
commencing in September 2001. Moreover, as claim (1) is part of her
larger harassment claim which includes matters which were timely raised
with an EEO Counselor, we find that this matter is likewise construed
as timely raised with an EEO Counselor.
Accordingly, the agency's decision dismissing claims (1) - (5) is
REVERSED. The claims, as defined herein, are REMANDED to the agency
for further processing in accordance with the Order 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 (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
March 24, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Although the agency's decision states it is dismissing claims (1) and
(3) because complainant was not aggrieved by the Postmaster's remarks,
a fair reading of the decision indicates that the agency intended to
dismiss claims (2) and (3) on these grounds.