Leslie L. Gumbs, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 26, 2009
0120090030 (E.E.O.C. Feb. 26, 2009)

0120090030

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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0120090030

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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