01a54872
11-10-2005
Kendal M. Gamble, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Kendal M. Gamble v. United States Postal Service
01A54872
11-10-05
.
Kendal M. Gamble,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 01A54872
Agency No. 1A-106-0016-05
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim. In a complaint dated March 15, 2005, complainant alleged
that she was subjected to a hostile work environment in reprisal for
prior EEO activity when, on February 9, 2005, she was approached by
management in an unprofessional and vulgar manner regarding personal
documents and clock rings.
The agency issued a final agency decision (FAD) on June 7, 2005,
dismissing complainant's complaint. The agency dismissed complainant's
claim for the lack of specificity in her complaint, pursuant to 29
C.F.R. � 1614.106(c). Further the agency found that the complaint failed
to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically,
the agency found that complainant was not aggrieved with respect to a
term, condition or privilege of employment. Finally, the agency found
that complainant failed to sign the formal complaint. The agency found
that �without a signature, [complainant's] complaint is not considered
to have been filed in accordance with the Commission's regulations.� On
appeal, complainant makes no new contentions.<1> The agency requests
that we affirm the FAD.
In determining whether a harassment complaint states a claim, 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 work environment claim. See Estate of Routson
v. National Aeronautics and Space Admin., EEOC Request No. 05970388
(February 26, 1999). In any case involving a claim of harassment,
the incidents must be judged by looking at all of the circumstances
including the frequency of the conduct; its severity, whether it is
physically threatening or humiliating, or a mere offensive uttering; and
whether it unreasonably interferes with an employee's work performance.
Faragher v. Boca Raton, 524 U.S. 775, 787-788.
The Commission finds that complainant failed to state a claim pursuant to
29 C.F.R. � 1614.107(a)(1) since the incidents alleged are not sufficient
to state a claim of harassment. Complainant has failed to establish
that the incidents were sufficiently severe or pervasive to render her
work environment hostile. Furthermore, 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. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996);
Banks v. Health and Human Serv., EEOC Request No. 05940481 (February 16,
1995). Therefore, the Commission concludes that the agency appropriately
dismissed her claims. Accordingly, the agency's final decision dismissing
complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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
__11-10-05________________
Date
1 The record contains a statement from
complainant dated June 24, 2005. We note that this statement was written
after the final agency decision was written. As a general rule, no new
evidence will be considered on appeal unless there is an affirmative
showing that the evidence was not reasonably available prior to or
during the investigation. EEO Management Directive for 29 C.F.R. Part
1614 (as revised, November 9, 1999), at 9-15; 29 C.F.R. � 1614.404(b).
Therefore, since complainant has not demonstrated that this evidence
was not reasonably available, the Commission declines to consider the
additional evidence that complainant submitted on appeal.,