0120091301
06-18-2009
Jenell Foster, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jenell Foster,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091301
Agency No. 1G787003508
DECISION
Complainant filed a timely appeal with this Commission from the final
agency's decision (FAD) dated December 13, 2008, dismissing her complaint
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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In a complaint dated November 17, 2008, complainant alleged that she was
subjected to discrimination on the bases of disability (shoulder/back),
age (63), and reprisal for prior protected EEO activity when:
1. On September 24, 2008, management screamed and hollered at her,
threatened to have her removed from the workroom floor by force and
refused to provide her copies of her PS form 3971s (Leave Request forms);
2. On October 10, 2008 complainant received a letter scheduling her for
a fitness for duty examination (FFDE);
3. Complainant was denied light duty and put off the clock; and
4. Management denied paying her higher level of pay when she performed
at a higher level.
The FAD dismissed allegations 1 and 2 for failure to state a claim. 29
C.F.R. � 1614.107(a)(1). It reasoned that complainant did not show
she was aggrieved, or that her claim rose to actionable harassment.
It generally referred to the record, which stated that complainant was
yelled and screamed at and threatened with police action. The agency
also based its decision on precedent which found that isolated incidents
of alleged harassment are not sufficient to state a harassment claim.
On allegation 2, the agency found that being questioned about possible
violations of medical restrictions and being required to undergo a FFDE
are common workplace occurrences.
On appeal, complainant maintains her initial argument that on September
24, 2008 she was screamed at and threatened with police action for being
on the workroom floor and was denied copies of her 3971s. She contends
that she received a letter on October 10, 2008 that advised her to
undergo a FFDE.
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. 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). An "aggrieved
employee" is defined 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).
The Supreme Court ruled that a harassment claim is actionable if it
is sufficiently severe or pervasive to alter the conditions of the
complainant's employment. Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993). The Court specified 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, a claim of harassment is
actionable only if, the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment.
On claim 1, even accepting the facts as true as alleged by complainant,
she has not asserted actions that are severe enough or sufficiently
pervasive to alter the conditions of her employment and establish a viable
harassment/hostile work environment claim. Further, complainant wanted
copies of her 3971s because she was having problems with continuation of
pay (COP). The EEO process is not the proper forum to raise a challenge
against the denial of COP. The proper forums are the agency's injury
compensation office and the Department of Labor, Office of Workers'
Compensation Programs. The Commission has no jurisdiction over COP. Jones
v. USPS, EEOC Appeal No. 0120082899 (September 15, 2008). Thus, the
Commission finds that allegation 1 fails to state a claim. Accordingly,
the agency's final decision dismissing allegation 1 is affirmed.
Regarding allegation 2, the Commission has consistently held that where a
complainant claims that he or she was unlawfully required to take a FFDE,
such an allegation states a claim of employment discrimination. Being
required to undergo a FFDE concerns a term, condition, or privilege of
complainant's employment. See Price v. USPS, EEOC Appeal No. 0120083470;
citing Browder v. USPS, EEOC Appeal No. 01962784 (August 27, 1996),
request for reconsideration denied, EEOC Request No. 05960865 (December
6, 1996). Thus, the Commission finds that allegation 2 was improperly
dismissed for failure to state a claim.
The FAD dismissed the complainant's allegation 3 on the grounds that
the same claim is pending before or has been decided by the agency
or Commission in accordance with 29 C.F.R, 1614.107(a)(1). The FAD
dismissed allegations 3 and 4 because complainant did not comply with
29 C.F.R. 1614.107(a), which states that prior to a request for a
hearing in a case, the agency shall dismiss an entire complaint that
fails to comply with the applicable time limits contained in 1614.105.
Under part 29 C.F.R. 1614.105(a)(1), an aggrieved person must initiate
contact with a Counselor within 45 days of the date of the matter alleged
to be discriminatory.
In this case, complainant alleged that as a result of a prior EEO
complaint that she filed in 2007, management denied her light duty
work and put her off the clock. However, complainant did not request
EEO counseling until September 30, 2008, approximately 11 months after
the claim arose, which exceeds the 45 day requirement. Additionally,
complainant claims that approximately June or July of 2008 she was
denied higher pay for higher performance. This is also untimely because
it exceeds the 45 day time limit. Thus, the agency's final decision
dismissing allegations 3 and 4 are affirmed.1
Accordingly, the FAD is modified and claim 2 remanded to the agency for
processing in accordance with the following Order.
ORDER
The agency is ordered to process claim 2 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (T0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 18, 2009
__________________
Date
1 Accordingly, we need not decide whether allegation 3 states the same
claim in a prior complaint.
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2
0120091301
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091301