01A04721_r
09-20-2001
Ileana Romero-Sobrino, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ileana Romero-Sobrino v. United States Postal Service
01A04721
September 20, 2001
.
Ileana Romero-Sobrino,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04721
Agency No. 4-H-330-0217-00
DECISION
Complainant initiated contact with an EEO Counselor on January 11, 2000.
In a formal EEO complaint dated April 20, 2000, complainant claimed that
she was discriminated against on the bases of her disability (leg injury)
and sex (female). The agency defined the issues in the complaint as
being that complainant was discriminated against on the above bases
when on December 24, 1999, the Station Manager paid a personal visit
to her physician, and that on July 1, 1999, she was not provided proper
medical care.
A review of the record reveals that complainant also claimed that she
was discriminated against when the Station Manager on numerous occasions
called her �wooden leg�, told her to cut off her hand, and he imitated her
limp on the workroom floor. The record reveals that complainant claimed
that the incidents set forth in her complaint represent harassment.
The agency dismissed the claim concerning the incident of December 24,
1999, on the grounds of failure to state a claim. The agency determined
that complainant did not suffer a personal loss or harm with respect to a
term, condition, or privilege of her employment when the Station Manager
visited her personal physician regarding her OWCP claim. The agency
dismissed the claim concerning not being provided proper medical care
on the grounds that complainant failed to contact an EEO Counselor in a
timely manner. The agency determined that complainant's contact of an
EEO Counselor on January 11, 2000, was approximately six months after
the alleged incident. The agency only addressed these claims and did
not address whether the complaint stated a claim of harassment.
On appeal, complainant maintains that she has been subjected to harassment
from late July 1999 through April 2000. According to complainant,
the Station Manager asked her every day when her physician was going to
do something. Complainant states that the Station Manager would call
her wooden leg and peg leg, and say to a clerk that her limp is wider
and wider every day.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides
that an agency shall dismiss a complaint that fails to state a claim.
In the present complaint, complainant claimed that she was subjected to
discriminatory harassment based on her disability and sex. We note
that the agency improperly failed to address in its decision the
matter of whether the alleged incidents state a claim of harassment.
The agency should have included in its definition of the complaint the
matters involving the Station Manager allegedly mocking complainant
in his remarks and actions. We find that the alleged incidents are
sufficiently pervasive to state a claim of harassment. With regard to
the incident of July 1, 1999, we find that complainant intended that
this incident be included as part of her claim of continuous harassment.
The Commission finds that this one claim of harassment was timely raised
with an EEO Counselor.
Accordingly, the agency's decision to dismiss the complaint on the
grounds of failure to state a claim and untimely EEO contact is REVERSED.
The complaint, as redefined in this decision as one claim of harassment,
is hereby REMANDED to the agency for further processing in accordance
with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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
September 20, 2001
__________________
Date