Susan Doran-Gamble, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 22, 1999
01971492 (E.E.O.C. Jan. 22, 1999)

01971492

01-22-1999

Susan Doran-Gamble, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Susan Doran-Gamble v. United States Postal Service

01971492

January 22, 1999

Susan Doran-Gamble, )

Appellant, )

)

v. ) Appeal No. 01971492

) Agency No. 4C-430-1062-96

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The appellant timely filed an appeal with this Commission from a final

decision, dated November 8, 1996, which the agency issued pursuant

to EEOC Regulation 29 C.F.R. �1614.107(a). The Commission accepts the

appellant's appeal in accordance with EEOC Order No. 960, as amended.

The appellant alleged that the agency harassed her based on her sex and

physical disability (asthma) when: (1) on April 4, 1996, her supervisor

belittled her by telling her that she was not casing letters fast enough

and asking her rudely if she was familiar with her case; (2) on April 5,

1996, the supervisor told her she was not casing flats fast enough and

instructed her to hold mail in her left arm and case with her right;

(3) on April 6, 1996, the supervisor instructed her in a physically

menacing and threatening tone that she would not go over with eight hours

and she would pivot an additional one-half hour on top of her route;

and (4) on April 6, 1996, the supervisor physically prevented her from

exiting her case with his body and refused to let her out of the case

when she requested. To remedy the alleged harassment, the appellant

sought compensatory damages and the restitution of sick leave.

The agency dismissed the appellant's complaint on the ground that she

was not aggrieved.

On appeal, the appellant submits medical evidence describing her physical

and emotional responses to the April 6, 1996 "entrapment situation."

The medical evidence indicates that the alleged harassment continued

after April 6, 1996.

The proper focus for dismissals of individual EEO complaints under 29

C.F.R. �1614.107(a) is on whether the complainant is allegedly aggrieved

due to an unlawful employment practice in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.;

the Age Discrimination in Employment Act, as amended, 29 U.S.C. 621 et

seq.; the Equal Pay Act, 29 U.S.C. 206(d); or the Rehabilitation Act,

as amended, 29 U.S.C. 791 et seq. Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997), citing Hishon v. King &

Spalding, 467 U. S. 69, 73 (1984) (complaint states a claim because

Title VII's prohibition of discrimination with respect to an employee's

"terms, conditions, or privileges of employment" includes benefits

that are part of an employment contract and benefits which an employer

chooses, but is not required, to provide its employees). Even where

a complaint does not challenge an agency action or inaction regarding

hiring, termination, compensation or any other specific term, condition,

or privilege of employment, the complaint may still state a claim if

the complaint allegations are sufficient to state a hostile or abusive

environment claim. Id., citing Harris v. Forklift Systems, Inc., 510

U.S. 17, 21 (1993) (harassment is actionable if it is sufficiently severe

or pervasive to alter the conditions of the complainant's employment).

The Commission finds that the appellant's complaint contains sufficient

factual allegations to indicate that the appellant may have been subjected

to harassment that was sufficiently severe and pervasive to alter the

conditions of her employment. See Cobb, supra. Specifically, the

Commission finds that the alleged blocking of the appellant's exit from

her case by the supervisor, combined with the alleged close scrutiny of

her work and possible additional incidents of harassment after April 6,

1996, is sufficient to raise a hostile work environment claim which must

be investigated.

On remand, the agency should consolidate this complaint with all other

harassment allegations filed by the appellant that are currently pending

before the agency. See Cobb, supra. When investigating the complaint,

the agency should treat the appellant's factual allegations as examples of

the alleged hostile environment to which the appellant has been subjected,

rather than as separate claims of discrimination. Id.

CONCLUSION

For the reasons stated above, the Commission REVERSES the agency's

dismissal of the appellant's June 10, 1996 complaint and REMANDS the

complaint for processing as ORDERED below.

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 the 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 the 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

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The 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,

the 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 the

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. 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 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 (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:

January 22, 1999

______________

Date Ronnie Blumenthal, Director

Office of Federal Operations