01a53826
11-07-2005
Pamela D. Fitzgerald, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pamela D. Fitzgerald v. United States Postal Service
01A53826
November 7, 2005
.
Pamela D. Fitzgerald,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53826
Agency No. 4J-530-0042-05
DECISION
Complainant filed an appeal with this Commission from a March 17, 2005
agency decision dismissing her complaint for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency defined the complaint as whether complainant was subjected
to discrimination on the basis of disability: (1) when she was harassed
by her supervisor; (2) when on February 4, 2005, complainant was given
a job discussion; and (3) when the harassment was causing complainant
physical problems.
In dismissing the complaint, the agency noted that regarding claims 1
and 3, complainant had failed to identify specific dates and any change
in the conditions and terms of her employment. Regarding claim 2, the
agency stated that issues concerning official discussions without more
did not state a claim.
On appeal, complainant submitted a narrative describing incidents of
alleged harassment and asserted that she and other disabled employees
were harassed by her supervisor and treated differently.
Upon review, the Commission finds that the agency misdefined and
fragmented complainant's complaint. We find that the overall complaint
is one of harassment. The record contains notes from complainant's
notebook in which she provided dates and descriptions of incidents which
allegedly occurred from September 18, 2004, through early March 2005.
In the notebook and on appeal, complainant alleged that her supervisor
would stand behind her; single complainant out numerous times for talking
at work, although other employees talked and their talking was ignored;
not allow complainant to ask questions or sort mail; follow complainant
while she was working and when complainant was in the restroom and on
breaks in the locker rooms; and sometimes check on complainant every 15
minutes and sometimes every half an hour. Complainant alleged that the
alleged harassment culminated in the official discussion that led her
to file her complaint.
The Commission has held that the agency should not ignore the
"pattern aspect" of complainant's claims and define the claims
in a piecemeal manner where an analogous theme unites the claims.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994). Complainant has alleged facts, which if proven
true, would indicate that complainant was subjected to harassment that
was sufficiently severe or pervasive to alter the conditions of her
employment. As such, complainant has shown an injury or harm to a term,
condition, or privilege of her employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). We therefore find that the complaint, as redefined
as one claim of harassment, states a claim.
The agency's dismissal of the complaint is REVERSED and the matter is
REMANDED, as redefined as one claim of harassment, to the agency for
further processing.
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
November 7, 2005
__________________
Date