0120064290
01-18-2007
Margaret Designor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Margaret Designor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200642901
Agency No. 4A-100-0124-06
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 16, 2006, dismissing her formal 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
On March 30, 2006, complainant initiated contact with an agency EEO
office regarding claims of discrimination. In a document identified
as "Information for Pre-Complaint Counseling," complainant indicated
that she has been subjected to discrimination since January 12, 2006.
A fair reading of the above document and the EEO Inquiry report (DRS)
reveals that complainant claimed that she was subjected to incidents of
discriminatory harassment when: management denied complainant's request
for assignments; management reassigned her to a different facility;
management changed her status from limited duty to light duty; management
assigned her to the parcel post; a named supervisor harassed her on
the work floor; management failed to process her paperwork for limited
duty; and a named manager lost her doctor's note for her job injury.
Complainant further asserted that management denied her a position when
she became a regular; and that she was treated differently when, on
February 14, 2006, she became ill, and was sent to the hospital alone,
while another employee was escorted to the hospital by a co-worker when
she became ill. Complainant also stated that management continually
"fired me" (sent her home) since 1996, and never sent her accident report
to the right department.
On June 7, 2006, complainant filed the instant formal complaint.
Therein complainant claimed that she was subjected to a hostile work
environment based on her race, national origin, color, disability, and
in reprisal for prior protected EEO activity. In her formal complaint,
complainant enumerated her claims in the following fashion:
1. On February 14, 2006, when she was physically ill, management called
911 and had her taken to Bellevue Hospital's psychiatric ward, and
refused to allow anyone to come with her;
2. Management denied her continued requests for assignments to appropriate
positions, and assigned complainant to positions where she is deprived
of work and work hours;
3. Management continued to fail to send complainant's limited duty
paperwork to injury control;
4. On or about March 2006, management denied complainant's request for
FMLA;
5. Management continually sent her home;
6. Management continually rejected her medical documentation, most
recently on or about March 8, 2006; and
7. Management changed the hours of her tour and scheduled days off.
On June 16, 2006, the agency issued the instant final decision.
Therein, the agency dismissed complainant's formal complaint on the
grounds that complainant raised a matter that had not been brought to
the attention of an EEO Counselor pursuant to 29 C.F.R. � 1614.107(a)
(2). The agency found that the claims in the complaint were new issues,
and that they were not raised with the EEO Counselor.
The agency also dismissed the complaint for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1). The agency determined that
complainant failed to demonstrate that she suffered a personal loss
or harm with respect to a term, condition or privilege of employment.
The agency also noted that complainant's claims are vague, and that
only two incidents provide sufficient information to accept them for
investigation.
Upon review, we find that a fair reading of the pre-complaint documents
reflects that complainant claimed that the alleged incidents were part
of a pattern of discriminatory harassment which initiated on January 12,
2006. As such, the incidents of harassment raised in her formal complaint
are like or related to the matters that were originally brought to the
attention of the EEO Counselor. Moreover, the Commission determines that
the alleged actions, when viewed collectively, were sufficiently severe
or pervasive to alter the conditions of her employment such as to state
a claim of harassment. As a final matter, although the agency asserted
that complainant's claims were vague, we note that complainant's formal
complaint, along with pre-complaint documents, described the incidents
of alleged harassment by event and dates. We find that sufficient
information was provided by complainant, for an adjudication of the
accepted claims.
Accordingly, for the reasons set forth above, we REVERSE the agency's
dismissal of the complaint, and REMAND the claims 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
January 18, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120064290
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064290