Jenell Foster, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 18, 2009
0120091301 (E.E.O.C. Jun. 18, 2009)

0120091301

06-18-2009

Jenell Foster, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jenell Foster,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091301

Agency No. 1G787003508

DECISION

Complainant filed a timely appeal with this Commission from the final

agency's decision (FAD) dated December 13, 2008, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

In a complaint dated November 17, 2008, complainant alleged that she was

subjected to discrimination on the bases of disability (shoulder/back),

age (63), and reprisal for prior protected EEO activity when:

1. On September 24, 2008, management screamed and hollered at her,

threatened to have her removed from the workroom floor by force and

refused to provide her copies of her PS form 3971s (Leave Request forms);

2. On October 10, 2008 complainant received a letter scheduling her for

a fitness for duty examination (FFDE);

3. Complainant was denied light duty and put off the clock; and

4. Management denied paying her higher level of pay when she performed

at a higher level.

The FAD dismissed allegations 1 and 2 for failure to state a claim. 29

C.F.R. � 1614.107(a)(1). It reasoned that complainant did not show

she was aggrieved, or that her claim rose to actionable harassment.

It generally referred to the record, which stated that complainant was

yelled and screamed at and threatened with police action. The agency

also based its decision on precedent which found that isolated incidents

of alleged harassment are not sufficient to state a harassment claim.

On allegation 2, the agency found that being questioned about possible

violations of medical restrictions and being required to undergo a FFDE

are common workplace occurrences.

On appeal, complainant maintains her initial argument that on September

24, 2008 she was screamed at and threatened with police action for being

on the workroom floor and was denied copies of her 3971s. She contends

that she received a letter on October 10, 2008 that advised her to

undergo a FFDE.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, 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). An "aggrieved

employee" is defined 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).

The Supreme Court ruled that a harassment claim is actionable if it

is sufficiently severe or pervasive to alter the conditions of the

complainant's employment. Harris v. Forklift Systems, Inc., 510 U.S. 17,

21 (1993). The Court specified that an "objectively hostile or abusive

work environment [is created when] a reasonable person would find

[it] hostile or abusive" and the complainant subjectively perceives

it as such. Harris, supra at 21-22. Thus, a claim of harassment is

actionable only if, the harassment to which the complainant has been

subjected was sufficiently severe or pervasive to alter the conditions

of the complainant's employment.

On claim 1, even accepting the facts as true as alleged by complainant,

she has not asserted actions that are severe enough or sufficiently

pervasive to alter the conditions of her employment and establish a viable

harassment/hostile work environment claim. Further, complainant wanted

copies of her 3971s because she was having problems with continuation of

pay (COP). The EEO process is not the proper forum to raise a challenge

against the denial of COP. The proper forums are the agency's injury

compensation office and the Department of Labor, Office of Workers'

Compensation Programs. The Commission has no jurisdiction over COP. Jones

v. USPS, EEOC Appeal No. 0120082899 (September 15, 2008). Thus, the

Commission finds that allegation 1 fails to state a claim. Accordingly,

the agency's final decision dismissing allegation 1 is affirmed.

Regarding allegation 2, the Commission has consistently held that where a

complainant claims that he or she was unlawfully required to take a FFDE,

such an allegation states a claim of employment discrimination. Being

required to undergo a FFDE concerns a term, condition, or privilege of

complainant's employment. See Price v. USPS, EEOC Appeal No. 0120083470;

citing Browder v. USPS, EEOC Appeal No. 01962784 (August 27, 1996),

request for reconsideration denied, EEOC Request No. 05960865 (December

6, 1996). Thus, the Commission finds that allegation 2 was improperly

dismissed for failure to state a claim.

The FAD dismissed the complainant's allegation 3 on the grounds that

the same claim is pending before or has been decided by the agency

or Commission in accordance with 29 C.F.R, 1614.107(a)(1). The FAD

dismissed allegations 3 and 4 because complainant did not comply with

29 C.F.R. 1614.107(a), which states that prior to a request for a

hearing in a case, the agency shall dismiss an entire complaint that

fails to comply with the applicable time limits contained in 1614.105.

Under part 29 C.F.R. 1614.105(a)(1), an aggrieved person must initiate

contact with a Counselor within 45 days of the date of the matter alleged

to be discriminatory.

In this case, complainant alleged that as a result of a prior EEO

complaint that she filed in 2007, management denied her light duty

work and put her off the clock. However, complainant did not request

EEO counseling until September 30, 2008, approximately 11 months after

the claim arose, which exceeds the 45 day requirement. Additionally,

complainant claims that approximately June or July of 2008 she was

denied higher pay for higher performance. This is also untimely because

it exceeds the 45 day time limit. Thus, the agency's final decision

dismissing allegations 3 and 4 are affirmed.1

Accordingly, the FAD is modified and claim 2 remanded to the agency for

processing in accordance with the following Order.

ORDER

The agency is ordered to process claim 2 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 (K1208)

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 (M1208)

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 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 (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action in

an appropriate United States District Court within ninety (90) calendar

days from the date that you receive this decision on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

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

June 18, 2009

__________________

Date

1 Accordingly, we need not decide whether allegation 3 states the same

claim in a prior complaint.

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2

0120091301

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120091301