01993802
05-12-2000
Trudy L. Gillman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Trudy L. Gillman, )
Complainant, )
)
v. ) Appeal No. 01993802
) Agency No. 4E-840-0026-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
On April 5, 1999, complainant filed a timely appeal with this Commission
from a final agency decision dated March 29, 1999 concerning her complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission REVERSES and REMANDS the agency's final decision.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
complainant's formal EEO complaint for failure to state a claim and
stating issues currently pending before or already decided by the agency
or Commission.
BACKGROUND
Complainant, employed by the agency as a Customer Service Supervisor
(EAS-16) at the time of the alleged discriminatory events, filed a formal
complaint on March 11, 1999, alleging that she was subjected to a hostile
work environment on the bases of sex (female), mental disability (post
traumatic stress disorder/panic), and reprisal (prior EEO activity) when
(1) she became aware that several co-workers were given information on her
medical condition by the Customer Service Manager (CSM); (2) she learned
that the CSM solicited statements, which he subsequently altered, from
co-workers about her; (3) the agency did not comply with her requests
to have her leave and earning statement concerning the period she was
out of work as well as other documents related to her employment mailed
to her<2>; (4) she learned that the Postmaster and the CSM were keeping
a file on her; and (5) the CSM conducted an investigation regarding an
incident, caused by him, which occurred on November 5, 1998. In its
final decision, the agency dismissed the first two issues for stating
a claim that was currently pending before the agency. The others were
dismissed for failure to state a claim. It is from that decision that
complainant appeals.
ANALYSIS AND FINDINGS
Stating a Claim Already Decided or Is Currently Pending
The agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited
as 29 C.F.R. � 1614.107(a)(1)).
According to the agency, the first two issues of the present complaint
were contained in a prior complaint filed by complainant on February 3,
1999. In the prior complaint, complainant alleged, in pertinent part,
that the Postmaster shared her medical report with another manager
without her permission and the CSM solicited derogatory information
about her. In the Commission's view, these incidents of discrimination
are not exactly the same as the ones contained in the present complaint.
Unlike the prior complaint, the present complaint alleged that the CSM
(as opposed to the Postmaster) gave several co-workers (as opposed
to a single manager) information concerning her medical condition.
Also, the present complaint alleged that the CSM solicited and altered
(as opposed to the mere solicitation alleged in the prior complaint)
statements about her from her co-workers. For those reasons, we find
that the first two issues of the present complaint have not already been
or are currently being decided by the agency; and therefore should not
have been dismissed as such.<3>
Failure to State a Claim
An agency shall dismiss a complaint that fails to state a claim.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited
as 29 C.F.R. � 1614.107(a)(1)). Conversely, 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 22, 1994). We note,
however, that under present Commission policy, claimed retaliatory actions
which can be challenged are not restricted to those which affect a term,
condition, or privilege of employment; a complainant is protected from
any discrimination which is reasonably likely to deter protected activity.
See EEOC Compliance Manual Section 8, �Retaliation;� No. 915.003 (May 20,
1998), p. 8-15.
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 Request 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.
In dismissing the last three incidents of the present complaint,
the agency reasoned that they failed to state a claim. We disagree.
It is clear from the counselor's report and the formal complaint that
complainant was subjected to a hostile working environment, particularly
when considering the alleged incidents together. According to her,
co-workers, armed with information allegedly provided to them by
management, referred to her as crazy. Also, if the agency was keeping a
file on complainant as alleged, it is our view that a reasonable person
would find that to be hostile or abusive. Those things, combined with
complainant's contention that the agency refused to provide her with
copies various documents concerning her employment information, do state
a claim.
CONCLUSION
Based on the foregoing, the Commission holds that the agency's decision
to dismiss complainant's formal EEO complaint for stating a claim already
decided by or pending before the agency and failure to state a claim was
erroneous and is, therefore, REVERSED. Consequently, the complaint is
REMANDED to the agency for further processing pursuant to this decision
and applicable regulation.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
May 12, 2000
______________________ ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________ ______________________________
Date Employment Opportunity Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2In its final decision, the agency incorrectly defined this issue as
follows: �[T]he complainant alleged discrimination . . . [when she]
was mailed her Leave and Earning Statement (LES). . .�
3The Commission notes, however, that the incidents at issue here are like
or related to those contained in the prior complaint. If the agency's
investigation is not complete or no decision has been rendered regarding
the prior complaint, the agency may chose to consider these incidents
with that complaint.