05970391
09-30-1999
Sharon Seibert Loeb, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service,) Agency.
Sharon Seibert Loeb v. United States Postal Service
05970391
September 30, 1999
Sharon Seibert Loeb, )
Appellant, )
)
v. ) Request No. 05970391
) Appeal No. 01962112
William J. Henderson, ) Agency No. 4F-926-1330-95
Postmaster General, )
United States Postal Service,)
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On January 18, 1997, Sharon Seibert Loeb (appellant) timely initiated
a request to the Equal Employment Opportunity Commission (EEOC
or Commission) to reconsider the decision in Sharon Seibert Loeb
v. United States Postal Service, EEOC Appeal No. 01962112 (December
13, 1996). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or misapplication of
established policy, 29 C.F.R. �1614.407(c)(2); or the previous decision
is of such exceptional nature as to have substantial precedential
implications, 29 C.F.R. �1614.407(c)(3). Appellant's request meets none
of the criteria for reconsideration, and therefore is DENIED. However,
the Commission has reconsidered the previous decision on its own motion.
BACKGROUND
Appellant, then a Rehabilitation Clerk, PS-5, filed a complaint alleging
that the agency discriminated against her on the bases of physical
disability (carpal tunnel syndrome) and reprisal (prior EEO activity)
when the following events occurred: (1) on April 21, 1995, she was denied
the opportunity to attend a one-day seminar; (2) on May 31, 1995, she
was excluded from a meeting with other Clerks; (3) on June 30, 1995,
she was informed that management needed to know her whereabouts; (4)
on July 8, 1995, other Clerks were "informed to scrutinize [her] work
performance"; (5) on July 10 and 11, 1995, she was accused of making
negative comments about a fellow employee; and (6) on July 14, 1995,
she was excluded from a meeting.
The agency issued an FAD dismissing allegation 1 for untimely EEO
Counseling, and dismissing allegations 2 through 6 for failure to state
a claim. The previous decision affirmed the FAD. The previous decision
noted that appellant had not contacted an EEO Counselor with regard
to allegation 1 until 15 days past the deadline for doing so, despite
the presence in the facility of a poster containing EEO information,
including process deadlines. The previous decision further noted,
with regard to allegations 2 through 6, that appellant had not shown
that she was "aggrieved," and that the incidents alleged were "discrete
and isolated," and therefore did not rise to the level of harassment.
ANALYSIS and FINDINGS
With regard to allegation 1, appellant states in her request for
reconsideration that she could not have seen the poster containing EEO
information, including deadlines, because she had not been present in
the facility since September 8, 1995. It is noted, however, that the
incident raised in allegation 1 occurred in April 1995 and the deadline
for EEO Counselor contact expired in June 1995, long before appellant's
absence from the workplace. In her request for reconsideration, appellant
submitted additional information bearing on whether she was, in fact,
"aggrieved" by the incidents identified in allegations 2 through 6.
This information existed during the pendency of the appeal, and appellant
has not explained why she failed to submit such information while the
appeal was pending. Accordingly, her request for reconsideration is
DENIED.
Nonetheless, the Commission finds it appropriate to reconsider the
matter on its own motion. In Cobb v. Dept. of the Treasury, EEOC Request
No. 05970077 (March 13, 1997), the Commission noted:
[A] complaint should not be dismissed for failure to state a claim unless
it appears beyond a doubt that the complainant can prove no set of facts
in support of the claim which would entitle the complainant to relief.
Thus, a claim of harassment based on the complainant's race, color,
religion, sex, national origin, age, or disability, [or prior EEO
activity,] should not be dismissed for failure to state a claim where
the complainant has made factual allegations which, when construed in the
light most favorable to the complainant, i.e., when considered together
and taken as true, are sufficient to state a claim: either (1) a claim
of disparate treatment regarding hiring, termination, compensation,
or any other specific term, condition, or privilege of employment; or
(2) a hostile or abusive work environment claim.
Thus, appellant's complaint states a claim if she shows: (1) that her
complaint falls within the purview of an anti-discrimination statute
enforced by the Commission; and (2) that she has sustained some harm
in the employment relationship.
Here, the incidents alleged by appellant amount to a single allegation of
harassment: that the agency's actions, motivated by discriminatory animus
based on disability and reprisal, created a hostile work environment in
violation of the Rehabilitation Act. Accordingly, allegations 1 through 6
will be remanded for processing as a single allegation of harassment.<1>
CONCLUSION
Upon review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request meets none of the criteria of 29 C.F.R. �1614.407(c).
Accordingly, appellant's request for reconsideration is DENIED.
Having reconsidered the matter on its own motion, the decision in Appeal
No. 01962112 is REVERSED as set forth herein. There is no further right
of administrative appeal from the decision of the Commission on this
request for reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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
appellant. If the agency does not comply with the Commission's order,
appellant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). Appellant 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. ��
1614.408, 1614.409, and 1614.503 (g). Alternatively, appellant 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. ��1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. �1614.410.
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that a
civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED EIGHTY (180) CALENDARS 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 (Z1092)
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:
Sept. 30, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Allegation 1 may have been untimely raised if considered as a discrete
act of discrimination, but nonetheless may be considered as part of an
allegation of a course of harassing conduct.