01994744
10-31-2000
Marcella E. Gorski, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Mid West Area), Agency.
Marcella E. Gorski v. United States Postal Service
01994744 and 01A00676
October 31, 2000
.
Marcella E. Gorski,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Mid West Area),
Agency.
Appeal No. 01994744
Appeal No. 01A00676
Agency No. 4I-530-0044-98
Agency No. 4I-530-0048-99
DECISION
INTRODUCTION
Complainant filed two timely appeals with this Commission from agency
final decisions dated April 30, 1999 and September 24, 1999, dismissing
her complaints 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., and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
Because the substance of the two appeals deal with similar issues and
allegations of discrimination, the Commission consolidates the appeals
pursuant to 29 C.F.R. � 1614.606.
ISSUE PRESENTED
Whether the agency's final decisions that dismissed the complaints for
failure to state a claim were correct.
BACKGROUND
A review of the instant complaints reveals that complainant suffers
from profound hearing loss. The record contains two complaints, the
first (Agency No. 4I-530-0044-98) filed on April 4, 1998, and the second
(Agency No. 4I-530-0048-99) filed on January 11, 1999. Both complaints
were investigated by the agency, but were subsequently dismissed for
the reasons stated below.
As background evidence for the first complaint, complainant reported
that she requested and was denied training in October and November
1997. Additionally, complainant states that despite repeated requests,
management failed to fix a door bell which lights up in order so that
she can attend to customers. Furthermore, she states that in 1998,
she reported to management officials that she was offended by certain
pornographic materials at the workplace. According to complainant, the
day after she reported the pornography, she found at her work station, a
three foot tall �balloon man� made out of postal materials and a balloon.
On the face of the structure was a sign that read, �I have special
needs.� According to the complaint, she brought the structure to the
attention of her supervisor, who allegedly laughed and walked away.
Complainant stated in her first complaint that another management
official eventually removed the structure after about twenty minutes.
According to another management official, the situation regarding the
balloon structure had been �taken care of.�
Complainant also alleged in her first complaint that in response to
her complaints to management regarding the conduct of her co-workers
and supervisors, an Acting Supervisor posted a sign, which she felt was
directed at her. Included in the file is the sign that reads, �Don't
Complain, Don't Criticize and Don't Condemn.�
In her second complaint, (Agency No. 4I-530-0048-99), complainant alleged
that, in retaliation for filing the first complaint, the Acting Supervisor
harassed her on November 6, 1998, when he told her that, �he has [her]
number,� and to speed up her work. In her second complaint, she also
mentioned her prior allegations that she was denied training in 1997,
and that the agency failed to fix an illuminated doorbell which she
required as an accommodation for her disability.
The agency's first final decision defined the first complaint (Agency
No. 4I-530-0044-98) as follows: whether complainant was discriminated
against on the bases of sex (female) and physical disability (hearing
impairment), when on January 20, 1998, she found a balloon at her
station that read, �I have special needs.� The agency's final decision
did not discuss complainant's claim that she was denied an accommodation
when the illuminated door bell was not fixed, nor did the final decision
discuss the allegation that an acting supervisor placed a sign on the wall
purportedly referencing her complaints to management.<2> The agency's
second final decision defined her second complaint (4I-530-0048-99) as
alleging discrimination on the basis of physical disability and reprisal
when on November 6, 1998, she was harassed by the Acting Supervisor.
Both complaints were dismissed pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1), for failing to state a claim. Specifically, the agency
determined that complainant failed to show that a causal connection
existed between the balloon or the Acting Supervisor's comment, and an
agency action that materially affected a term, condition, or privilege
of employment. The appeals followed.
ANALYSIS AND FINDINGS
As an initial note, we find the agency misdefined the complaints, and more
importantly, failed to consider allegations contained in the complaints.
Complainant clearly alleged in her first complaint that the agency failed
to accommodate her disability when they failed to fix an illuminated
doorbell. However, the agency failed to address the accommodation issue
in its first final decision.<3> Additionally, the agency failed to define
or investigate complainant's claim of harassment based on her disability
or in reprisal for her prior EEO activity when her co-workers placed a
three foot tall balloon structure at her work site, and when her Acting
Supervisor harassed her by placing a sign on the wall, and informed
her that he �had her number.� Instead of examining these complaints as
claims of harassment, the agency failed to address certain allegations,
and that which it did address was examined in a �piecemeal� approach.
EEOC Regulation 29 C.F.R. � 1614.106(d), provides that a complainant
may amend a complaint at any time prior to the conclusion of the
investigation to include "issues or claims" like or related to those
raised in the complaint. There is no requirement that the complainant
seek counseling on these new claims. EEO Management Directive (MD)
110, as revised, November 9, 1999 (EEOC - MD ll0), Chapter V., Section
III.A.1 at 5-9. The same regulation provides that after requesting a
hearing, a complainant may file a motion with the administrative judge
to amend a complaint to include issues or claims" like or related to
those raised in the complaint. A claim is an assertion of an unlawful
employment practice or policy for which, if proven, there is a remedy
under the federal equal employment statutes. EEO MD 110, as revised,
November 9, 1999, Chapter V., Section III.A.1 at 5-5.
In the instant case, the Commission finds that complainant's claim of
harassment contained in her second complaint constitutes a new instance
of discrimination that is part of an alleged pattern of harassment that
was initially alleged in her first complaint. The Commission finds that
the complainant is not raising new "issues or claims" of discrimination in
her second complaint, but rather, points to additional occasions when she
was subjected to one or more of the same allegedly unlawful employment
practices. Therefore, the Commission finds that the harassment claims
contained in her second complaint should be treated as new incidents
that are part of her existing discrimination claims. See generally,
EEOC-MD 110, Chapter V, Section III.B.1. at 5-10.
Now we will examine the basis for the dismissals. The regulation set
forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an
agency shall dismiss a complaint that fails to state a claim. 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, .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 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 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 considering the above principles and after an examination of the
record as a whole, we find the agency improperly dismissed complainant's
claims that she was harassed. We find complainant's allegation that
she was harassed by her co-workers when they placed a three foot
tall structure at her work station sufficiently objectionable such
that she states a claim under our Regulations. Complainant alleged
that this incident humiliated her and was not handled properly by
management officials. We also find that the agency improperly dismissed
complainant's claim that she was harassed based on reprisal. Indeed,
the agency never addressed complainant's allegation that her Acting
Supervisor placed a sign on the wall condemning her complaints.
Although the record reveals an investigation was done in the instant
cases, we find that the agency should investigate the matter as harassment
claims, and consider that evidence that was neglected. In addition,
in light of the agency's failure to address complainant's claims that
she was denied an accommodation for her disability, the agency shall
investigate this claim pursuant to the order below.
CONCLUSION
As such, the agency's decision to dismiss the complaints for failure to
state a claim are REVERSED. The agency is directed to comply with the
ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims of harassment based
upon disability and reprisal, as well as the denial of a reasonable
accommodation, in accordance with 29 C.F.R. � 1614.108. The agency shall
acknowledge to the complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
October 31, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The Report of Investigation states that complainant's claim that she was
denied training in October and November 1997 was previously dismissed
for failure to timely contact an EEO Counselor in a prior final agency
decision dated May 27, 1998.
3Instead, in another final decision dated February 10, 1999, the agency
dismissed the accommodation claim raised in complainant's second
complaint, Agency No. 4I-530-0048-99, for stating the same claim
as that contained in her first complaint. Indeed, complainant did
raise the accommodation issue in both complaints. However, as already
discussed, the agency did not address the accommodation claim in the
first complaint.