01A30651_r
09-08-2003
Ronald L. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald L. Walker v. United States Postal Service
01A30651
September 8, 2003
.
Ronald L. Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30651
Agency No. 4E-970-0075-02
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated October 15, 2002, dismissing his 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. In his complaint, complainant
alleged that he was subjected to discrimination on the bases of religion,
disability, and reprisal for prior EEO activity when complainant was
harassed when on:
March 6, 2002, Supervisor A made comments to complainant regarding �lying
before God;� singled complainant out for conducting street observations;
and held an investigative interview with complainant;
May 14, 2002, Supervisor B threatened complainant with disciplinary
action if he took his break at 8:30 a.m. again;
May 29, 2002, and May 31, 2002, Supervisor B harassed complainant while
weighing the mail and his lunch breaks by staring at him and asking if
he had a problem.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The agency stated that complainant has not alleged that any concrete
action occurred with respect to the alleged incidents when Supervisor A
commented that complainant was �lying before God� or when Supervisor B
told complainant that he was going to discipline complainant if he took
break at 8:30 a.m. again, or when Supervisor B asked if complainant
had a problem. The agency stated that the alleged incidents was not
sufficiently severe to constitute harassment.
On appeal, complainant states that he missed work from March 6, 2002,
to May 12, 2002, under his doctor's orders due to post traumatic stress
disorder as a result of the incident on March 6, 2002 with Supervisor A.
Complainant states that he missed work again on July 12, 2002, through
July 17, 2002, and on October 12, 2002 due to the harassment from his
employer. Complainant also states that he was harmed by the retaliatory
behavior of his employer when he was issued two disciplinary letters of
warning on July 19, 2002.
The record contains complainant's written description of the alleged
incidents of discrimination. Complainant explains that on March 5,
2002, when he approached Supervisor A to inquire about his volume, he
was told not to touch the clip board on which the volume was recorded.
Complainant explains that on March 6, 2002, he was called in for an
investigative interview regarding the clip board incident. He states that
Supervisor A, Supervisor B and the shop steward were all in attendance.
Complainant states that during the interview he was also questioned
concerning his performance on March 4, 2002. Complainant states that
following the investigative interview he was ordered by Supervisor A to
remain in the room and when he asked if the shop steward could remain
in the room Supervisor A denied his request. Complainant states that
Supervisor A shut the door and told complainant several times that he
knew that complainant was lying and asked him if he wanted to go before
an arbitrator and swear before God that nothing happened. Complainant
claims that Supervisor A threatened him when he stated that he hoped
complainant would make a big issue of this because he had a witness.
Complainant states that following this incident, he attempted to complete
his morning duties but had difficulty keeping his composure and thereafter
left to go to his doctor.
Further, complainant states that over the past year he has been followed
by Supervisor A while performing his street duties as a carrier an
unreasonable amount of times. Complainant names seven other street
carriers in his office who were not subject to the same amount of street
observations.
Additionally, complainant states that on May 29, 2002 he was informed
by Supervisor B that an agreement was reached with Supervisor B and the
shop steward that complainant would be timed while weighing the mail.
Complainant states that he later learned that no such agreement was made.
Complainant explains that on May 31, 2002, while Supervisor B was timing
him, he told complainant not to weigh certain mail. Complainant states
that during the discussion over his weight restrictions, Supervisor B
became aggressive. Complainant explains that three times Supervisor B
questioned complainant's weighing of mail which the supervisor stated
was obviously below complainant's weight restriction.
Upon review, we find that the agency improperly dismissed complainant's
complaint for failure to state a claim. In alleging that he was subjected
to increased scrutiny in an on-going manner regarding street observations,
investigative interviews, and for timing his weighing of the mail,
we find that complainant has stated a cognizable claim of harassment.
Further, we note that the record reveals that complainant has another
complaint, Agency No. 4E-970-0124-02, which is pending before the agency
and involves some harassment claims by complainant that are related to
the present appeal. Therefore, we shall remand the present complaint,
as defined in this decision, for consolidation with the accepted complaint
in Agency No. 4E-970-0124-02 for joint processing with the agency.
Accordingly, the agency's decision to dismiss complainant's complaint is
REVERSED and the matter is REMANDED for further processing in accordance
with the Order below.
ORDER
The agency shall consolidate the remanded complaint with Agency
No. 4E-970-0124-02 that is still pending with the agency. The agency
shall notify complainant that the claims have been consolidated for
processing within 30 days of the date of this decision becomes final.
The agency shall then resume processing the complaint pursuant to 29
C.F.R. � 1614.106, et seq. A copy of the agency's letter to complainant
notifying complainant of the consolidation of the complaint must be sent
to the Compliance Officer as referenced herein.
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 8, 2003
__________________
Date