Appellant, v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service, (Southern Region), Agency. Request No. 05930220 Appeal No. 01923070 Agency No. 3-V-1043-92 August 12, 1993 GRANTING OF REQUEST TO RECONSIDER INTRODUCTION On November 18, 1992, Appellant (hereinafter referred to as appellant), initiated a timely request to the Equal Employment Opportunity Commission (EEOC) to reconsider the decision in Appellant v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service (Southern Region), EEOC Appeal No. 01923070 (October 22, 1992). EEOC Regulations provide that the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. 1614.407(a). The party requesting consideration must submit written argument or evidence which tends to establish one or more of the following three criteria: 29 C.F.R. 1614.407(c)(1) (new and material evidence is available that was not readily available when the previous decision was issued); 29 C.F.R. 1614.407(c)(2) (the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy); and 29 C.F.R. 1614.407(c)(3) (the decision is of such exceptional nature as to have substantial precedential implications). Appellant appears to base her request on 29 C.F.R. 1614.407(c)(2).[FN1] For the reasons set forth herein, appellant's request is granted. ISSUE PRESENTED The issue presented herein is whether appellant's request satisfies any of the criteria for reconsideration of the previous decision which affirmed the agency's rejection of her complaint for failure to state a claim. BACKGROUND In light of the narrow issue to be determined, the Commission will not repeat those facts set forth in the previous decision. Instead, we briefly note the following: appellant filed a formal EEO complaint alleging that the responsible management official (RMO) harassed her on the basis of sex (female) [FN2] when he entered her case, which was not big enough for two people, and started to rub his chest against her arm and shoulder, causing her to leave. [FN3] The final agency decision (FAD) rejected appellant's complaint on the grounds that her allegations did not fail within the purview of 29 C.F.R. 1613.212(a)[FN4] and that, therefore, she had failed to state a claim. The previous decision affirmed the FAD for the stated reasons that her allegations of brief physical contact and an ambiguous hand gesture from across the room were isolated and not sufficiently severe or pervasive to constitute harassment. The gravemen of appellant's request for reconsideration was that the previous decision erred in its interpretation of the aforementioned regulation. Appellant contends that she was personally aggrieved when the RMO harassed her. There was no response from the agency to appellant's request. ANALYSIS AND FINDINGS After a careful review of the record, the Commission finds that appellant's request to reconsider satisfies 29 C.F.R. 1614.407(c)(2). It is, therefore, the decision of the Commission to grant the request. EEOC Regulation 29 C.F.R. 1613.212 provides for the acceptance of complaints from aggrieved employees or applicants for employment who believe that they have been discriminated against because of race, color, sex, religion, national origin, age, or disabling condition. As was stated in Odoski v. Department of Energy, EEOC Appeal No. 01901496 (April 16, 1990): The only proper question under the purview issue is whether the complaint alleges employment discrimination on a basis covered by EEO statutes (race, color, sex, religion, national origin, age, (disability) or reprisal for prior EEO activities). If the answer is yes then the agency must accept the complaint for processing regardless of what it may think of the merits. In addition, Odoski, supra, stated that, 'employees' psychological as well as economic fringes are statutorily entitled to protection from employer abuse and the phrase terms, conditions and privileges of employment is an expansive concept which sweeps within the protective ambit of Title VII. A working environment heavily charged with discrimination may, in and of itself, constitute an unlawful employment practice.' (Citation omitted.) A fair reading of appellant's allegations is that she was alleging discrimination on the basis of sex (female) when the RMO harassed her and created a hostile and abusive work environment, through unwelcome physical contact, gestures, and speech. The Commission finds, therefore, that appellant's allegations come within the purview of EEOC regulations and that the previous decision erred in its affirmance of the FAD by making a determination on the merits. In making this finding with regard to appellant's request, the Commission advises the parties that it is not a finding on the merits of appellant's complaint. For the aforementioned reasons, appellant's request is granted. The previous decision is, therefore, vacated and appellant's complaint remanded to the agency for compliance with the Commission's order set forth below. There is no further right of administrative appeal from the Commission's decision in this matter. CONCLUSION After a review of appellant's request to reconsider, the previous decision, and the entire record, the Commission finds that appellant's request satisfies 29 C.F.R. 1614.407(c)(2). It is, therefore, the decision of the Commission to grant the request. The decision of the Commission in EEOC Appeal No. 01923070 (October 22, 1992) is hereby REVERSED, as is the final agency decision, and appellant's complaint is REMANDED to the agency for further processing in accordance with the Commission's Order set forth below. This decision is the Commission's final decision in this matter. There is no further right of administrative appeal from the decision of the Commission on this request to reconsider. ORDER (E1092) The agency is ORDERED to process the remanded allegations in accordance with 29 C.F.R. 1614.108. The agency shall acknowledge to the appellant that it has received the remanded allegations within thirty (30) calendar days of the date this decision becomes final. The agency shall issue to appellant a copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without a hearing, the agency shall issue a final decision within sixty (60) days of receipt of appellant's request. A copy of the agency's letter of acknowledgement to appellant 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 (K1092) 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 appellant. RIGHT TO FILE A CIVIL ACTION (R/A1092) 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: (1) WITHIN THIRTY (30) CALENDAR DAYS of receipt of the final decision by the agency on your complaint subsequent to this remand; or (2) AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your complaint with the agency, or your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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: Frances M. Hart Executive Officer Executive Secretariat [FN1]. To the extent appellant wishes to file a Freedom of Information Act (FOIA) request, as indicated in her request for reconsideration, she is referred to 29 C.F.R. Part 1610 for guidance. [FN2]. Appellant had originally alleged sexual harassment. [FN3]. In a statement to an EEO Counselor, appellant said that the RMO started to talk in her left ear, while pressing his chest against her arm and shoulder. According to the EEO Report of Investigation (ROI), appellant filed a second allegation months later that the RMO made an apparently obscene gesture towards her. Moreover, at about the time of the original alleged incident, appellant wrote a letter to the agency's Postmaster stating that the RMO was continually harassing her, yelling at her, and creating 'an intimidating, hostile, and offensive work environment for me.' [FN4]. The regulations that were in effect at the time this matter arose.