01983252
08-17-2001
Doris Brabham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Doris Brabham v. U.S. Postal Service
01983252
08-17-01
.
Doris Brabham,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01983252
Agency No. 1H-332-0001-98
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (African-American), sex (female), age (over 40 years of
age), and reprisal (prior EEO activity) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. For the reasons stated herein, the agency's
FAD is affirmed.
During the period in question, complainant was employed as a Mail Handler,
PS-4 at a Florida facility of the agency. Believing she was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint alleging that the agency discriminated against her when,
between May 17 and August 29, 1997, it failed to allow complainant to
work overtime in a limited duty status and harassed her.
The agency accepted for investigation the issue regarding the denial
of overtime only. Complainant, in turn, informed the agency that the
issue regarding harassment should also be accepted for investigation.
The agency then notified complainant that the issue would remain as it
was originally accepted and gave her appeal rights to the Commission
regarding its decision. This appeal followed.<1> In determining whether
a harassment complaint states a claim in cases where a complainant had
not alleged disparate treatment regarding a specific term, condition,
or privilege of employment, the Commission has repeatedly examined
whether a complainant's harassment claims, when considered together and
assumed to be true, were sufficient to state a hostile or abusive work
environment claim. See Estate of Routson v. National Aeronautics and
Space Administration, EEOC Request No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable person in
the complainant's circumstances would have found the alleged behavior to
be hostile or abusive. Even if harassing conduct produces no tangible
effects, such as psychological injury, a complainant may assert a Title
VII or ADEA cause of action if the discriminatory conduct was so severe
or pervasive that it created a work environment abusive to employees
because of their protected class under the statutes. See Rideout
v. Department of the Army, EEOC Appeal No. 01933866 (November 22, 1995)(
citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) req. for
recons. den. EEOC Request No. 05970995 (May 20, 1999). Also, the trier
of fact must consider all of the circumstances, including the following:
the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.
Harris, 510 U.S. at 23.
The Commission considered all of the alleged harassing incidents, i.e,
the agency's consistent denial of overtime for complainant during a three
and a half month period, in the light most favorable to complainant and
finds that the incidents, together, are sufficient to state a claim.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). The agency, however, addressed the matter when it
processed the accepted issue. Essentially, complainant alleged two
different theories of discrimination based on one set of adverse actions
by the agency. We affirm the FAD.
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 (S0900)
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. 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 (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
___08-17-01_______________
Date
1EEOC Regulation 29 C.F.R. � 1614.107(b) provides that where an agency
decides that some but not all of the claims in a complaint should be
dismissed, the agency shall notify the complainant of its determination;
however this determination is not appealable until final action is taken
on the accepted issue. The Commission previously inquired of the parties
the status of the accepted issue. Based on the responses, it appears
that the accepted issue, i.e, the denial of overtime, was the subject of
a final agency decision dated March 29, 1999, rendering the harassment
claim the only remaining viable matter and ripe for review on appeal.