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02-26-2009
Leslie L. Gumbs, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leslie L. Gumbs,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090030
Agency No. 1H-351-0053-08
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated August 25, 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.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of national origin (United States with French
West Indian ethnicity), race (mixed black, white and red Indian), and sex
(female) when on March 19, 2008, she learned that a manager, when asked
by a union steward if complainant and a female co-worker were lovers,
replied "it is a known fact that they are."
The FAD dismissed the complaint for untimely EEO counseling.
It reasoned that complainant learned of the alleged comment on March
19, 2008, but did not initiate EEO contact until May 10, 2008, beyond
the 45 calendar day time limit to do so. 29 C.F.R. � 1614.105(a)(1)
& .107(a)(2). Complainant counters that she initiated contact with an
EEO counselor regarding the matter in March 2008. This is supported by
an EEO counseling intake form indicating that complainant requested EEO
counseling on March 27, 2008. On the form, which complainant completed
and returned to the agency on April 14, 2008, complainant alleged the
manager's comment breached a prior settlement agreement promising that
she would be treated with dignity and respect.1 We find this contact
should have been treated as the date complainant timely initiated EEO
counseling regarding her complaint, and so find.
The FAD also dismissed the complaint for failure to state a claim.
29 C.F.R. � 1614.107(a)(1). In Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of
Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment
is actionable if it is sufficiently severe or pervasive to alter
the conditions of the complainant's employment. The Court explained
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, not all claims of harassment are actionable. Where a complaint
does not challenge an agency action or inaction regarding a specific
term, condition or privilege of employment, a claim of harassment is
actionable only if, allegedly, the harassment to which the complainant
has been subjected was sufficiently severe or pervasive to alter the
conditions of the complainant's employment.
Applying the above standard, we find that complainant's complaint does
not rise to the level of actionable harassment. Accordingly, the FAD
is affirmed.
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 (S0408)
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 (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
February 26, 2009
__________________
Date
1 Complainant's breach claim was adjudicated in Gumbs v. United States
Postal Service, EEOC Appeal No. 0120082976 (December 3, 2008). We found
that the referenced settlement term was vague and unenforceable.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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