0120072513
09-12-2007
Szymon Berizko, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Szymon Berizko,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120072513
Agency No. 4F-920-0031-07
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 23, 2007, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. Upon review, the Commission finds that complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. In a complaint dated March 2, 2007,
complainant alleged that he was subjected to ongoing hostile work
environment harassment on the basis of disability, when:
(1) In April 2006, the supervisor joked and made statements to others
regarding him being on Family Medical Leave (FMLA)1;
(2) On September 8, 2006 (after complainant fell down stairs on his
route), management failed to investigate, failed to file an accident
report, and failed to issue him a CA-1 Form for his on-the-job injury2;
(3) On October 23, 2006, the supervisor wrote a letter to the union
president concerning his ability to serve as a steward3; and
(4) On October 26, 2006, a co-worker told him the supervisor made jokes
about him.4
The FAD dismissed incidents (1) and (2) for untimely EEO Counselor
contact. The FAD then found that incidents (3) and (4) failed to state
a claim. This constitutes improper fragmentation of complainant's claim.
The agency erred in not recognizing that this complaint involves a single
broad claim of ongoing discriminatory harassment. Considering the four
alleged incidents jointly, complainant has alleged harassment that is
severe enough to state a claim.
Because the most recent chronological event addressed in the complaint
occurred within forty-five days of complainant's initial EEO Counselor
contact on November 22, 2006, we find that the EEO contact was timely with
regard to all the matters raised in the complaint. See National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002)(a plaintiff
alleging a hostile work environment will not be time barred if all acts
constituting the claim are part of the same unlawful practice and at least
one act falls within the filing period. However, "discrete discriminatory
acts are not actionable if time barred, even when they are related to acts
alleged in timely filed charges."). Therefore, the agency's decision
must be vacated for the agency to properly address complainant's claim
of harassment, taking into account all incidents alleged. We make no
judgment concerning the merits of complainant's claim.
Accordingly, the agency's decision to dismiss complainant's complaint
is hereby REVERSED. The complaint is REMANDED to the agency for further
processing in accordance with this decision and 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
September 12, 2007
__________________
Date
1 Complainant asserts that the Supervisor made assumptions as to his
condition when he took FMLA leave in April 2006, by stating that
complainant "went out on stress" and that complainant was "prone
to anger." Complainant additionally states that the Supervisor joked
with fellow carriers in the office that he hoped complainant did not
come back and shoot someone, which made carriers start joking about who
complainant would come back and harm.
2 Complainant asserts that the Supervisor's inaction is based on his
erroneous assumption that the accident was caused by medication that
complainant was taking because of stress. Complainant insists that
this was a job-related injury, and his Supervisor (who is not a doctor)
has no basis for his belief that it was due to medication.
3 In this letter, the Supervisor asserted his belief that complainant
should not serve as a union steward. The Supervisor referred to
FMLA leave that complainant took, indicating that it might have been
stress-related. The Supervisor stated that he is worried about his own
safety because of complainant. He also indicated that complainant may
pose a danger to himself and/or other employees.
4 Specifically, complainant states that the Supervisor was saying on the
work room floor that another carrier and complainant had both called in
sick the previous day. Complainant states that the Supervisor joked to
the Station Manager that he hoped the two of them had not called in on
the same phone.
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0120072513
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036