05a60128
11-22-2005
Linda R. O'Neal, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Linda R. O'Neal v. United States Postal Service
05A60128
11-22-05
.
Linda R. O'Neal,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Request No. 05A60128
Appeal No. 01A53989
Agency No. 4H-300-0087-05
DENIAL
Linda R. O'Neal (complainant) timely requested reconsideration of
the decision in Linda R. O'Neal v. United States Postal Service, EEOC
Appeal No. 01A53989 (September 8, 2005). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant alleged that she was subjected to a hostile work environment
on the bases of race (African-American) and in retaliation for prior EEO
activity when, on January 27, 2005, she was struck on the right arm by
the Postmaster, in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. Complainant alleged
that on the date at issue, the Postmaster walked past her on the workroom
floor and his right forearm hit her upper arm. The Postmaster denied
hitting complainant, but later apologized for brushing against her.
Pursuant to complainant's complaint of discrimination, the agency issued a
final decision dismissing the complaint for failure to state a claim. The
Commission then issued a decision finding that complainant's complaint was
properly dismissed under 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. The Commission found that to the extent complainant alleged
that she was subjected to a hostile work environment, she failed to
state a claim. Further, the Commission found that assuming the incident
actually took place, it was not sufficiently severe or pervasive enough
to state a claim of discriminatory harassment. As such, the Commission
affirmed the agency's final decision dismissing complainant's complaint.
In complainant's request for reconsideration, she alleges that the
Commission's decision involved a clearly erroneous interpretation of
material fact or law, as it failed to address her claims of race and
retaliation discrimination. Further, complainant alleges that several of
the Commission's decisions state that allegations of physical assault or
physical injury as a result of the actions of another person constitute
allegations that state a claim.
Addressing complainant's allegations, we note that in determining whether
a harassment complaint states a claim in cases where a complainant has
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). 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 cause of action if the discriminatory
conduct was so severe or pervasive that it created a work environment
abusive to employees because of their race, gender, religion, or national
origin. 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.
After a careful review of the record, the Commission again finds that the
Postmaster did not subject complainant to a hostile work environment.
In reaching this conclusion, the Commission restates our prior finding
that even assuming the incident took place as complainant alleged,
there is no evidence by which we can conclude that the contact between
complainant and the Postmaster was intentional, especially in light of the
Postmaster's apology that same day, nor is there evidence that the contact
was so severe as to create a hostile work environment in and of itself.
While we agree that the Commission has previously found that a physical
assault can create a hostile work environment by itself, there is nothing
in the facts of appellant's allegation that this was anything more than
inadvertent contact. Thus, in this case, we find that complainant has
failed to explain how the incident at issue rendered her aggrieved.
As such, after reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 01A53989 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 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.
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
____11-22-05______________
Date