Trudy L. Gillman, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 12, 2000
01993802 (E.E.O.C. May. 12, 2000)

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.