01984319
11-28-2000
Donna Brackman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Donna Brackman v. United States Postal Service
01984319
November 28, 2000
.
Donna Brackman,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984319
Agency No. 1C-451-0029-98
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated April 15, 1998, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The agency characterized her complaint as alleging that she was subjected
to discrimination on the bases of race (Caucasian), color (white), sex
(female), and in retaliation for prior EEO activity when:
On a continuing basis, complainant was subjected to sexual harassment
and the agency failed to take prompt and effective remedial action;
In September 1997, complainant was threatened with bodily harm; and
False information was placed in [Manager A's] September 23, 1997 letter
[to a congressman].
The agency's decision dismissed complainant's claims for failure to state
a claim. Specifically, the agency determined that complainant failed
to provide evidence that she suffered a personal loss with respect
to a term, condition or privilege of employment as a result of the
claimed actions of management. In response to complainant's claims,
the agency stated that it took prompt and effective action in that an
internal investigation was conducted in May 1997, and that complainant's
dissatisfaction with the investigation does not mean the agency did not
promptly respond. With regard to her second and third claims, the agency
stated that an interview was conducted and no harm came to complainant,
and that Manager A's letter merely explained the findings of an internal
investigation in response to a congressional inquiry.
The record indicates that complainant has claimed, inter alia, that she
was sexually harassed by a supervisor when he wrapped his arms around
her in an elevator in a sexual way, and, after complainant showed no
interest in him, when the supervisor repeatedly yelled at her on the
workroom floor and threatened her with suspension. Complainant further
claimed that after she reported the harassment to management and the
union, other members of management also harassed her. As a result,
complainant claimed that she was yelled at, lied about, threatened
again with suspension and being escorted out of the building, and taken
off her break. Complainant also asserted that, in September 1997,
she was threatened with physical violence from the original harassing
supervisor and another employee in retaliation for her reporting the
sexual harassment, and that the agency further retaliated against her
for her harassment claim by putting false information in Manager A's
September 23, 1997 letter to complainant's congressman.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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 precedent has 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 21, 1994).
Upon review of the record, we find that the agency has improperly
dismissed complainant's claims. As an initial matter, the Commission
finds that the agency has addressed the merits of complainant's claims
without a proper investigation as required by the regulations. We find
that by asserting that she has been subjected to sexual harassment
and retaliation and that the agency has failed to take prompt and
effective remedial action, complainant has clearly claimed a harm or
loss with respect to a term, condition, or privilege of employment, and
has therefore stated a claim. The record additionally makes clear that
claims (2) and (3), as identified by the agency, are not separate claims
apart from complainant's harassment and retaliation claims, but instead
were intended to illustrate the ongoing nature of the harassment and
retaliation claimed by complainant. Consequently, we find that claims (2)
and (3) should be considered as a part of complainant's stated claims of
harassment and retaliation, and, as such, were improperly dismissed.
Accordingly, the agency's decision dismissing complainant's complaint
is REVERSED. The complaint, as defined and described by the Commission
herein, is REMANDED to the agency for further processing in accordance
with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims, as defined and
described by the Commission herein, in accordance with 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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 28, 2000
__________________
Date