01982679
03-31-1999
Sandra J. Pruneda, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Sandra J. Pruneda, )
Appellant, )
)
v. ) Appeal No. 01982679
) Agency No. 4G780011497
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
concerning 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. (Title VII), and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The Commission
hereby accepts the appeal in accordance with EEOC Order No. 960,
as amended.
Appellant alleges that she was discriminated against on the bases of sex
(female), national origin (Hispanic), reprisal (prior EEO activity), and
age (40+), when she was issued a Letter of Warning (LOW) on December 2,
1996. The agency dismissed the complaint, pursuant to EEOC Regulation
29 C.F.R. �1614.107(e), on the grounds that the issue had become moot
because the (LOW) was expunged from the appellant's record and other
requested corrective action was completed as well.
Review of the record discloses that in both her formal complaint,
and in her investigative affidavit, the appellant asks to �BE MADE
WHOLE...reimbursed for all out of pocket expenses etc.� We construe
this as a claim for compensatory damages under Title VII.
It is well settled that the reduction of a LOW to an official discussion,
or to completely expunge the LOW, as was done in the instant case,
renders the underlying issue moot (in the Post Office) because appellant
is no longer aggrieved. See Douglas v. United States Postal Service,
EEOC Request No. 05950053 (April 18, 1996). However, a complaint is not
moot if the complainant alleges compensatory damages. See Glover v. USPS,
EEOC Appeal No. 01930696 (December 9, 1993).
Accordingly, because appellant has clearly made a claim for compensatory
damages, we find that the agency's dismissal of this allegation was
improper. The FAD is therefore VACATED and REMANDED consistent with
this finding and the ORDER which follows.
On appeal, appellant also states that she alleged a pattern of harassment
in her complaint, but that it was not considered by the agency.
Review of appellant's formal complaint reveals that she makes a general
reference to the case file in the EEO's counselor's possession as
containing all of the information supporting this claim. However, she
does not identify any particular document which contains the unidentified
alleged additional incidents, nor does she object to the agency's letter
accepting her complaint which defined the issue as concerning only the
issuance of the LOW.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive: and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Based on our review, we find that the appellant does not state an
actionable claim for harassment. Although she asserts a �pattern of
harassment� on appeal and in her complaint, she does not set forth
any specific incidents of discrimination, but instead makes a general
reference to the case file and a very vague statement that �many occasions
from the 80's to the 90's� constitute the pattern of harassment alleged.
We find that this is insufficient to sustain a claim of a �hostile
or abusive work environment� within the meaning of the legal standard
cited above. Accordingly, we conclude that the agency's decision not
to include a �pattern of harassment� as an allegation was appropriate.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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 acknowledgment 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. �1614.10.
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.
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 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. 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 (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.F.R.).
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:
March 31, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations