05971090
09-23-1999
Denise P. Wright, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Denise P. Wright v. United States Postal Service
05971090
September 23, 1999
Denise P. Wright, )
Appellant, )
)
v. ) Request No. 05971090
) Appeal No. 01970832
William J. Henderson, ) Agency No. 4B-060-1258-96
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On September 17, 1997, Denise P. Wright (appellant) initiated a
request to the Equal Employment Opportunity Commission (EEOC) to
reconsider the decision in Denise P. Wright v. Marvin T. Runyon, Jr.,
Postmaster General, United States Postal Service, EEOC Appeal No. 01970832
(August 7, 1997). EEOC Regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law, regulation or material fact, or
misapplication of established policy, 29 C.F.R. �1614.407(c)(2); and the
previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's dismissal of appellant's complaint.
BACKGROUND
Appellant filed a formal complaint in September 1996 alleging
discrimination based on race, color, sex, and physical disability when
she was allegedly harassed by a co-worker (Employee A). In support of
that claim, appellant cited an incident that occurred on August 20, 1996.
Specifically, the record reveals that appellant and Employee A had an
altercation on the workroom floor during which Employee A used profanity.
A supervisor subsequently intervened, at which point appellant and
Employee A were given individual discussions. In its final decision, the
agency dismissed the complaint for failure to state a claim on the grounds
that this incident, by itself, did not rise to the level of harassment.
Appellant appealed and the prior decision affirmed the dismissal.
In support of her request for reconsideration, appellant states that
the agency has failed to provide her with "a safe and non-violent work
environment," and also notes that she is unable to communicate with
certain employees, including Employee A. Appellant also alleges, for
the first time, that management officials have taunted her by telling
her that she is "worthless" and that she should be glad she has a job.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of
the criteria of 29 C.F.R. �1614.407 is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to state a
claim under �1614.103(a). 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; �1614.106(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).
In cases where an individual has alleged harassment, the Commission has
held that the allegation should be accepted when the individual has made
factual allegations which, when considered together and taken as true,
are sufficient to state a claim of a hostile work environment. Riden
v. Department of the Treasury, EEOC Request No. 05970314 (October 2,
1998). The complaint should not be dismissed for failure to state a
claim unless it appears beyond a doubt that the individual can prove
no set of facts in support of the claim that would entitle her to
relief. Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
In considering the one incident cited by appellant, we note it is
well-settled that "a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim." Id. In light
of that principle, and because appellant's allegation is limited to the
one incident, we find she has not alleged sufficient facts to sustain
a claim of hostile environment harassment. Accordingly, the Commission
agrees that appellant's complaint was properly dismissed for failure to
state a claim.<0>
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request fails to meet the criteria of 29 C.F.R. �1614.407(c).
Therefore, it is the decision of the Commission to DENY appellant's
request. The decision in EEOC Appeal No. 01970832 (August 7, 1997)
remains the Commission's final decision. There is no further right of
administrative appeal on a decision of the Commission on this Request
for Reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court. It
is the position of the Commission that 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. You should
be aware, however, that courts in some jurisdictions have interpreted
the Civil Rights Act of 1991 in a manner suggesting that a civil action
must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you
receive this decision. To ensure that your civil action is considered
timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS
from the date that you receive this decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Sept. 23, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 If appellant, as indicated in her request for reconsideration, believes
she is being subjected to further discrimination, she is advised to contact
an EEO Counselor.