01A41822
06-29-2004
John Carlucci, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John Carlucci v. United States Postal Service
01A41822
June 29, 2004
.
John Carlucci,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41822
Agency No. 4A-070-0160-03
DECISION
On April 3, 2003, complainant initiated contact with an EEO Counselor.
On June 5, 2003, complainant filed a formal EEO complaint wherein he
claimed that he was subjected to discrimination on the bases of his sex
(male), disability (unspecified), and in reprisal for his previous EEO
activity under Title VII and the Rehabilitation Act. The agency accepted
the complaint for investigation and stated that the alleged discriminatory
event was a notice of proposed removal issued to complainant on April
29, 2003.
By final action dated January 15, 2004, the agency dismissed the
complaint on the grounds of failure to state a claim pursuant to 29
C.F.R. �1614.107(a)(1). The agency determined that due to complainant's
retirement on July 1, 2003, no further action or decision was taken with
regard to the notice of proposed removal. The agency determined that
complainant failed to articulate how he suffered any loss or harm with
respect to a term, condition, or privilege of his employment.
On appeal, complainant contends that the Postmaster subjected him to
�psychological assaults� which made his work life unbearable from
the time that he filed a prior EEO complaint, June 30, 1999, until
his retirement. According to complainant, the Postmaster assigned him
duties that were not within his job description, frequently ridiculed
his disabilities, referred to him as �damaged goods�, and stated that
he �tried to farm [him] out, but that nobody wanted [him] because he
couldn't be trusted since he filed an EEO complaint.�
In response to complainant's appeal, the agency reiterates its position
that no action was taken against complainant with regards to the April
29, 2003 notice of proposed removal. Additionally, the agency notes
that while complainant cites psychological assaults perpetrated against
him by his supervisor since his EEO complaint on June 30, 1999, he has
failed to provide evidence to support his psychological claim.
The record contains a copy of complainant's formal complaint in which he
states that he suffered harassment from the Postmaster since he filed
his previous EEO complaint in June 1999 until April 2003. The record
also contains a copy of PS Form 2564-A, Information for Pre-Complaint
Counseling in which complainant details the harassment which he suffered
beginning in June 1999. Among other incidents of harassment, complainant
states that he was subjected to statements made by the Postmaster that
�[his] career is over,� he is �damaged goods,� and he tried �to farm
[complainant] out but nobody wanted [him],� he hopes complainant �get[s]
hit by lighting;� was allegedly left out of meetings relevant to his job;
and was ignored regarding serious service issues by the Postmaster which
made his work difficult; and was given a March 31, 2003 pre-disciplinary
interview.
Upon review of the record, we find that the complaint should not have
been dismissed on the grounds of failure to state a claim. It is evident
that complainant claimed that he had been subjected to a hostile work
environment. In light of complainant's statement that the Postmaster
subjected him to �psychological assaults� until his retirement, we find
that the claim concerning the notice of proposed removal is merged into
a claim of constructive discharge. Accordingly, the agency's decision
dismissing the complaint on the grounds of failure to state a claim was
improper and is hereby REVERSED. This complaint as clarified herein is
hereby REMANDED for further processing pursuant to 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
June 29, 2004
__________________
Date