01991086
11-05-1999
Nancy E. Baisley, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Nancy E. Baisley, )
Appellant, )
)
v. ) Appeal No. 01991086
) Agency No. 1A-126-0037-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On November 17, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to 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. In her complaint, appellant alleged that she was
subjected to discrimination on the basis of sex (female) when, on
numerous occasions<1>, her supervisor failed to make eye contact with
her while conversing but instead let his eyes wander appellant's body,
which made her feel uncomfortable.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant initiated EEO counseling on May 12, 1998, and thereafter filed
a formal complaint on August 10, 1998, alleging discrimination based
on sex (female). In her complaint, appellant alleged that on numerous
occasions including the last occurrence on May 9, 1998, her supervisor
failed to make eye contact while conversing with her but instead allowed
his eyes to wander her body, which made appellant feel uncomfortable.<2>
On October 20, 1998, the agency issued a FAD dismissing appellant's
complaint for failure to state a claim. This appeal followed.
ANALYSIS AND FINDINGS
Failure to State A Claim
EEOC Regulation 29 C.F.R. � 1614.107(a) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, 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 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 21, 1994).
Where a complainant does not suffer a present harm or loss regarding
a term, condition, or privilege of employment, he or she may still be
aggrieved where the complaint allegations, taken together and treated
as true, are sufficient to state a hostile or abusive environment claim.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). A hostile or abusive work environment claim requires that a
complainant allege facts which, if proven true, may indicate that the
complainant was subjected to harassment that was severe or pervasive
enough to alter the conditions of his or her employment. Cobb, at 3.
In making such a determination, the Commission has considered �whether
a reasonable person in the complainant's circumstances would have found
the alleged behavior to be hostile or abusive.� Id.
To substantiate her sexual harassment claim, appellant alleged that one
specific incident occurred on May 9, 1998 and numerous other incidents
occurred for which she did not provide details. �[T]he Commission has
repeatedly found that allegations of a few isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim.�
Id. at 2. Accordingly, the agency's dismissal is affirmed.
Conclusion
It is the decision of the Commission to AFFIRM the agency's dismissal
of appellant's complaint for failure to state a claim.
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:
Nov. 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Appellant did not cite the specific dates of the other occasions in her
complaint or, according to the EEO Counselor, in her contact with him.
The counselor affirmed this information in an affidavit.
For the first time in this matter, in appellant's appeal letter, she also
alleged her supervisor made offensive comments about her work performance
and her bodily functions.
2Appellant filed a grievance, dated May 9, 1998, in which she alleged
her supervisor inappropriately reprimanded her. In her appeal letter,
appellant indicated the event date written on her grievance as May 19
was a typographical error. Appellant's supervisor allegedly reprimanded
her on May 9, 1998 and leered at her body while doing so, which is the
action she speaks of in her complaint.