01992462
09-30-1999
Wanda J. Price-Freeman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Wanda J. Price-Freeman v. United States Postal Service
01992462
September 30. 1999
Wanda J. Price-Freeman, )
Appellant, )
) Appeal No. 01992462
v. ) Agency No. 1-I-502-0002-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) 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. (Title VII). The appeal is accepted
in accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on December 17, 1998, alleging
discrimination on the bases of sex (female) and retaliation when on:
August 6, 1998, August 26, 1998, and October 6, 1998, appellant's
supervisor made comments about not being in her assigned area, not doing
her job, talking to others, wearing shorts too short, being paged several
times, and being on the telephone.
November 7, 1998, information regarding her absence was not relayed to
supervisor.
November 11, 1998, appellant felt over supervised and that her supervisor
constantly needled her about every aspect of her job.
December 3, 1998, appellant's supervisor harassed her about the Family
Medical Leave Act (FMLA) when the supervisor told appellant that she
was not allowed to leave.
December 4, 1998, appellant received a job discussion.
September 4, 1998, supervisor told appellant that he received complaints
the appellant was wearing short shorts.
September 17, 1998, appellant was told to return to her work area instead
of talking with co-workers.
November 4, 1998, appellant was told not to speak with others and not
to leave her work area. When appellant left to use the bathroom, she
was paged to return to her work area.
In its FAD dated January 27, 1999, the agency dismissed appellant's
complaint. The agency found that allegations (6)-(8) raised by appellant
were not brought to the attention of an EEO Counselor, therefore,
those allegations were dismissed pursuant to 29 C.F.R. �1614.107(b).
With regards to the remaining allegations, the agency found that appellant
failed to state a claim for she was not aggrieved. Therefore, the
agency dismissed allegations (1)-(5) pursuant to 29 C.F.R. �1614.107(a).
This appeal followed.
ANALYSIS AND FINDINGS
Allegations (1)-(5)
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal of
a complaint or portion thereof which fails to state a claim within the
meaning of 29 C.F.R. �1614.103. 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; �1614.106(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. Riden v. Department of the
Treasury, EEOC Request No. 05970314 (October 2, 1998).
In the case at hand, appellant does not claim, and there is no evidence,
that she was subjected to any disciplinary action regarding one of the
allegations in her complaint. Further, the Commission has held that
a remark or comment unaccompanied by concrete action is not a direct
and personal deprivation sufficient to render an individual aggrieved
for purposes of Title VII. See Simon v. United States Postal Services,
EEOC Request No. 05900866 (October 3, 1990).
In appellant's complaint, she asserted that the actions cited constituted
harassment. In order to constitute a violation of Title VII, the
conduct must be "so objectively offensive as to alter the conditions of
the victim's employment." See Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors, EEOC Notice No.915.002
(June 18, 1999) (citing Oncale v. Sundowner Offshore Services, Inc., 118
S. Ct. 998, 1002 (1998)). Therefore, we find that viewing allegations
(1)-(5) of appellant's complaint together, the actions described therein
are not sufficient to state a claim of harassment. Therefore, we find
that allegations (1)-(5) are dismissed for failure to state a claim,
pursuant to 29 C.F.R. �1614.107(a).
Allegations (6)-(8)
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995).
Allegations (6)-(8), upon review of the record, we find, were not
brought to the attention of an EEO Counselor by appellant. We also
find that these allegations are like matters appellant discussed
during EEO Counseling and that the agency should not have dismissed
this portion of the complaint pursuant to 29 C.F.R. �1614.107(b).
In appellant's complaint, she alleges several incidents relating to
her supervisor discussing the length of her shorts and appellant's
discussions with co-workers. Allegations (6)-(8) raise the same sort
of incidents against the same supervisor during the same period of time.
Because these allegations are like those allegations raised with the EEO
Counselor, they should be considered along with the allegations raised
to the EEO Counselor to determine whether appellant's complaint states
a claim of harassment.
Upon review of the complaint as a whole (allegations (1)-(8)), the
Commission finds that appellant's complaint fails to state a claim
of harassment. We find that actions describe in allegations (1)-(8)
of appellant's complaint are not sufficient to rise to the level of
being "so objectively offensive" and, therefore, fail to state a claim.
Therefore, we find that appellant's complaint is dismissed pursuant to
29 C.F.R. �1614.107(a).
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED.
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 (S0993)
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:
Sept. 30. 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations