0120113496
11-02-2011
Debra J. Fazio, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Debra J. Fazio,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120113496
Agency No. 4C250003211
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 9, 2011, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Sales, Service & Distribution Associate at the Agency’s Clarksburg
Post Office facility in Clarksburg, West Virginia.
On May 19, 2011, Complainant filed a formal EEO complaint alleging that
the Agency subjected her to a discriminatory hostile work environment
on the basis of sex (female) when the Postmaster allowed a co-worker
to call her “Bitch” several times in meeting on February 26, 2011;
the same coworker, in the presence of the Postmaster, has repeatedly used
vulgar language directed towards her including saying “fuck” and has
put his finger menacingly in her face; and has purposely delayed her mail
and then laughed about it with other employees. Complainant alleged that
when she asked the Postmaster to do something about the harassment, he did
nothing, and instead started criticizing her work. She also stated that
she has approved Family Medical Leave Act (FMLA) leave, but to harass her,
the Postmaster required her to provide additional medical documentation.
The Agency dismissed the harassment/hostile work environment claim,
pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim,
asserting that management has already addressed the issues between the
co-worker and Complainant, and the co-worker no longer works the same tour
as Complainant. The Agency dismissed the matter of requiring additional
medical documentation as a collateral attack on the FMLA process.
The instant appeal followed. In her appeal Complainant states that the
co-worker still shows up in her work place weekly without a supervisor
there and alleges additional acts of retaliation. Complainant asserts
that the Postmaster continues to tolerate unacceptable behavior.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency
shall accept a complaint from an aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's
federal sector case precedent has long defined an "aggrieved employee"
as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April
21, 1994). If complainant cannot establish that s/he is aggrieved,
the agency shall dismiss a complaint for failure to state a claim.
The Commission has held that where, as here, a complaint does not
challenge an agency action or inaction regarding a specific term,
condition, or privilege of employment, the claim of harassment may survive
if it alleges conduct that is sufficiently severe or pervasive to alter
the conditions of the complainant’s employment. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993). In the instant case, a fair
reading of the complaint and related EEO counseling materials indicates
Complainant claims she has been subjected to a discriminatory hostile
work environment perpetuated by the coworker and tolerated by management.
The incidents referred to in the complaint are simply offered as examples
of the hostile work environment. Complainant’s allegations, considered
together with her assertion that the coworker continues to harass her,
are sufficient to state a claim of a hostile work environment. While the
Agency asserts that it has addressed the situation between Complainant
and the coworker, this claim addresses the merits of Complainant’s
complaint without a proper investigation as required by the regulations,
and is irrelevant to the procedural issue of whether she has stated a
justiciable claim under Title VII. See Osborne v. Department of the
Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United
States Postal Service, EEOC Request No. 05930220 (August 12, 1993);
Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642
(August 15, 1991).
As to the matter of being required to submit additional medical
documentation, we find this is not a collateral attack on another process.
Complainant is alleging that she has an approved FMLA condition, and
management is now requiring additional medical documentation in order to
harass her for trying to get them to take action against the coworker.
This is part of her overall hostile work environment claim and, on remand,
should be investigated with it.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED and the complaint is REMANDED for further processing
pursuant to the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (hostile work
environment) in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 2, 2011
__________________
Date
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0120113496
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113496