01a51332
03-10-2005
Felicia T. Battle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Felicia T. Battle v. United States Postal Service
01A51332
March 10, 2005
.
Felicia T. Battle,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51332
Agency No. 1K-214-0008-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 4, 2004, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of sex (female) when:
On August 28, 2004, she was physically assaulted by the Supervisor.
On unspecified dates, she was threatened with discipline.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. With regards to claim 1, the agency
concluded that complainant failed to provide any evidence that would
suggest that she suffered a personal loss or harm with respect to a term,
condition, or privilege of employment as a result of the alleged physical
assault. The agency also concluded that even if complainant was able
to show that she was harmed by the alleged assault, because she filed
a Workers' Compensation claim, the alleged assault was not reviewable
by the Commission because the Office of Workers' Compensation Programs
has exclusive jurisdiction over the matter. With regards to claim 2,
the agency concluded that complainant was not able to provide evidence
to show that she was disciplined. Moreover, complainant had not shown
that she suffered any adverse action as a result of being threatened
with discipline.
The Commission finds that the complaint is more appropriately defined
as a claim of harassment.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any 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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
A review of the record shows that complainant initiated the EEO counseling
process and filed the instant complaint alleging that she was �physically
assaulted� by her supervisor. The EEO Counselor's report contains the
Supervisor's account of what occurred regarding the alleged assault,
but was silent regarding complainant's account of the alleged assault.
Complainant's complaint does not provide any detail regarding the alleged
assault. Moreover, the record is devoid of any evidence from complainant
that details the alleged assault. Without additional evidence, such as
complainant's account as to what occurred we cannot make a determination
on whether the complaint states a claim. We find the record insufficient
to render a decision on the matter.
Furthermore, we find that the incident regarding the alleged threats of
discipline are connected to the alleged physical assault. Complainant
claims that she was threatened with discipline as a result of the August
28, 2004 assault. These two incidents should be considered together
by the agency as a claim of harassment. Because we seek clarification
on the nature of the alleged physical assault, we can not yet render a
determination on whether the claim of harassment is sufficiently severe or
pervasive so as to state a claim. On remand, the agency shall consider
both incidents together in making its determination as to whether the
complaint states a claim.
The agency's decision is VACATED and we REMAND the complaint to the
agency for further processing in accordance with this decision and
applicable regulations.
ORDER
The agency shall contact complainant in order to supplement the record
with complainant's account of the alleged August 28, 2004, physical
assault. Within 30 days of the date this decision becomes final, the
agency shall issue a decision dismissing the complaint or issue a letter
of acceptance of the complaint. A copy of the decision dismissing the
complaint or a copy of the letter of acceptance 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
March 10, 2005
__________________
Date