APPELLANT,
v.
ROBERT E. RUBIN, SECRETARY, DEPARTMENT OF THE TREASURY, AGENCY.

Request No. 05960111
Appeal No. 01952282
Agency No. 95-2077

July 19, 1996

GRANTING OF REQUEST FOR RECONSIDERATION

INTRODUCTION

On November 15, 1995, Appellant (hereinafter referred to as the appellant) timely initiated a request to the Equal Employment Opportunity Commission (the Commission) to reconsider the decision in Appellant v. Robert E. Rubin, Secretary, Department of the Treasury, EEOC Appeal No. 01952282 (October 6, 1995), received on October 14, 1995. [FN1] 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 reconsideration must submit written argument or evidence which tends to establish one or more of the following three criteria: new and material evidence is available that was not readily available when the previous decision was issued, 29 C.F.R. 1614.407(c)(1); the previous decision involved an erroneous interpretation of law, regulation, or material fact, or a misapplication of established policy, 29 C.F.R. §1614.407(c)(2); and the decision is of such exceptional nature as to have substantial precedential implications, 29 C.F.R. §1614.407(c)(3). For the reasons set forth herein appellant's request is GRANTED.

ISSUE PRESENTED

The issue presented is whether the previous decision properly affirmed the agency's dismissal of appellant's complaint on the grounds that the matter complained of failed to state a claim.

BACKGROUND

In light of the narrow issue to be decided herein, the Commission will not repeat the previous decision's narrative. Instead, we note the following salient facts: on December 30, 1994, appellant filed a formal EEO complaint wherein she alleged that she had been discriminated against on the basis of sex (female) when on October 19, 1994, her supervisor placed his hands on her shoulders, turned her around and stated that she could not leave without shaking hands with him. [FN2] Appellant maintained that her supervisor's actions were directed at her because of her sex. She said that her supervisor's "[p]hysical aggression, intimidation and unequal treatment constituted harassment based on sex . . . ." As part of her requested relief, appellant requested compensatory damages for the mental stress that she suffered.

In its final decision, the agency dismissed appellant's complaint on the grounds of failure to state a claim. The agency determined that appellant had not suffered a personal loss or harm with respect to a term, condition or privilege of employment, and therefore she was not an aggrieved employee. The agency found that even if the supervisor placed his hands on appellant's shoulders, she failed to demonstrate that this incident was more than an isolated occurrence. Moreover, the agency concluded that there was no sexual component to the alleged contact; therefore, it did not rise to the level of sexual harassment. On appeal, appellant argued that she was aggrieved because she had to take sick and annual leave, and sustained an injury that required medical treatment. [FN3]

The previous decision found that appellant had not shown how she was harmed by her supervisor's action. The decision also noted that:
[i]n order to establish a case of harassment that creates a hostile working environment, the harassment of which appellant complains generally must be ongoing and continuous in order to constitute unlawful discrimination. A few isolated incidents usually are not sufficient to show harassment.

Appellant, according to the previous decision, did not assert a pattern of conduct showing harassment nor did the incident result in a direct or personal deprivation sufficient to render her aggrieved. The previous decision also found that appellant's complaint was not converted into a processable claim merely because she requested compensatory damages.

In her request for reconsideration (RTR), appellant contends that the previous decision involved an erroneous interpretation of material fact, or a misapplication of established policy. In addition, she argues that the previous decision is of such an exceptional nature as to have substantial precedential implications. Appellant maintains that she was harmed by the actions of the supervisor with regard to the terms and conditions of her employment. She notes, in pertinent part, that her supervisor's "sexually demeaning conduct" has unreasonably interfered with her work environment. She also notes that the previous decision sends a message that her supervisor's conduct was acceptable.

The agency did not respond 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. §1614.407(a) provides that the agency shall dismiss a complaint or a portion of a com-plaint that fails to state a claim under § 1614.103(a). EEOC Regulation 29 C.F.R. §1614.103(a) covers individual and class complaints of employment discrimination and retaliation prohibited by Title VII (discrimination on the basis of race, color, religion, sex and national origin), the Age Discrimination in Employment Act (discrimination on the basis of age when the aggrieved individual is at least 40 years of age), the Rehabilitation Act (discrimination on the basis of disability) or the Equal Pay Act (sex-based wage discrimination). Complaints alleging retaliation are also considered to be complaints of discrimination. In addition, the U.S. Supreme Court has held that an employee is aggrieved, or in other words has standing to file a complaint, when some personal loss or harm has been suffered with respect to a term, condition, or privilege of employment. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972).

The Commission, in Beverly Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993), held that:
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.

A fair reading of appellant's allegation indicates that she is alleging discrimination on the basis of sex (female) when on October 19, 1994, her supervisor harassed her and created a hostile and abusive work environment through unwelcome physical contact. The agency's conclusion as to whether appellant's complaint meets the Commission's definition of sex based harassment goes to the merits of her allegation rather than whether she has stated a claim. As long as she has alleged that she was harassed because of her sex, she states a claim under Title VII. Accordingly, we find that the previous decision erred in its affirmance of the agency's final decision.

CONCLUSION

After a review of appellant's request for reconsideration, 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. 01952282 (October 6, 1995) 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 (K0595)

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. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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 appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (R0993)

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. 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:

Frances M. Hart
Executive Officer
Executive Secretariat

FN1. We note that Monday, November 13, 1995, the last day for appellant to file her request for reconsideration in a timely manner, was the first day of a Federal Government furlough, which occurred November 13 - 17, 1995. Consequently, the Commission has determined that appellant had until Monday, November 20, 1995, the first day it was open for business, to timely file her request for reconsideration.

FN2. The record indicated that appellant attended a meeting with her supervisor. At the conclusion of the meeting, he stood up and attempted to shake hands with her. However, appellant refused to shake his hand. According to appellant, her supervisor told her that she could not go until she shook his hand. Appellant turned and walked away, but her supervisor followed her. He put his hands on her shoulders and turned her around. He again extended his hand for a handshake and declared that she could not leave until she shook his hand. Appellant turned and walked out of his office without shaking his hand.

FN3. Appellant did not specify the nature of the injury.