01976689
05-05-1999
Mary Ann Callahan, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mary Ann Callahan v. United States Postal Service
01976689
May 5, 1999
Mary Ann Callahan, )
Appellant, )
)
v. ) Appeal No. 01976689
) Agency No. 4A-088-1046-94
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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., the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. �621 et seq., and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The final agency decision was received
by appellant on August 12, 1997. The appeal was postmarked September
6, 1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint.
BACKGROUND
Appellant contacted an EEO counselor on February 17, 1994, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against from February 11, 1994 through February
18, 1994 when her manager changed her hours. Appellant alleges that
she was further discriminated against when: (1) on February 11, 1994,
the postmaster ordered appellant out of the building and told her he
was putting her on 45 day compensation and screamed and pointed his
finger at her; (2) on February 15, 1994, the postmaster telephoned
appellant at home and told her that she had better not be seen driving
her car and that she was not to leave her house without contacting him;
(3) on February 16, 1994, the postmaster sent appellant to the post
office doctor in Newark, New Jersey; (4) on February 17, 1994, the
postmaster screamed at appellant when she was using the telephone and
(5) on February 18, 1994, appellant was forced to go to the hospital by
ambulance and was sent for psychiatric evaluation. Informal efforts to
resolve appellant's concerns were unsuccessful. Accordingly, on April
26, 1997, appellant timely filed a formal complaint of discrimination
on the bases of race (part Native-American), sex (female), age (53),
and disability (degenerated disc and sciatica). Appellant's complaint
also included a request for compensatory damages.
The record indicates that by letter dated December 4, 1995, the agency
requested that appellant provide objective evidence to support her claim
for compensatory damages. On August 7, 1997, the agency issued its final
decision (FAD) dismissing appellant's complaint as moot. The agency
focused its decision on appellant's change in work schedule allegation
and determined that appellant had previously filed a grievance on the
issue, which resulted in an award in appellant's favor. The FAD further
determined that because appellant's grievance regarding her schedule
change was decided in her favor, appellant's EEO complaint on the same
issue was moot.
In addition, the FAD found that because appellant failed to provide
objective evidence indicating that she had incurred compensatory damages,
interim relief had eradicated the effects of the alleged violation.
Regarding appellant's harassment allegation, the agency determined that
appellant's allegation that her manager called her names and threw her
out of the building was an isolated incident which did not rise to the
level of harassment. The agency determined that the allegation failed
to state a claim. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency
may dismiss a complaint which fails to state a claim pursuant to
29 C.F.R. �1614.103. For employees and applicants for employment,
EEOC Regulation 29 C.F.R. �1614.103 provides that individual and
class complaints of employment discrimination prohibited by Title
VII (discrimination on the bases of race, color, religion, sex and
national origin), the ADEA (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), and the Equal Pay Act
(sex-based wage discrimination) shall be processed in accordance with
Part 1614 of the EEOC Regulations.
To establish standing as an "aggrieved employee" within the context
of 29 C.F.R. �1614.103, appellant must allege, first of all, that she
has been injured in fact. Hackett v. McGuire Bros., 445 F.2d 447 (3rd
Cir. 1971). Specifically, appellant must allege some direct harm which
affects a term, condition, or privilege of employment. See generally,
Riden v. Department of the Treasury, EEOC Request No. 05970314 (October 2,
1998). An employee is "aggrieved" if she has suffered direct and personal
deprivation at the hands of the employer. See Hobson v. Department of
the Navy, EEOC Request No. 05891133 (March 2, 1990).
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.
A complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the complainant cannot prove a set of facts in
support of the claim which would entitle the complainant to relief. 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).
To determine whether the issues raised in appellant's complaint remain in
dispute, it must be ascertained (1) if it can be said with assurance that
there is no reasonable expectation that the alleged violation will recur,
and (2) if the interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation. County of Los Angeles
v. Davis, 440 U.S. 625 (1979). When such circumstances exist, no relief
is available and no need for a determination of the rights of the parties
is presented. EEOC Regulation 29 C.F.R. �1614.107(e) requires an agency
to dismiss any portion of a complaint that is moot.
Appellant has requested compensatory damages. If appellant is entitled
to compensatory damages, then the complaint is not moot. The agency
found that appellant did not submit sufficient evidence of compensatory
damages to show that she could possibly be awarded compensatory damages
if she prevailed in the complaint.
The Commission has previously addressed what types of evidence
constitutes objective evidence showing that an appellant suffered
compensatory damages. LaRochelle v. Department of the Navy, EEOC Appeal
No. 01942119 (Apr. 13, 1995); Taylor v. Department of the Navy, EEOC
Appeal No. 01940376 (July 22, 1994); Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (Jan. 5, 1993). In Carle the Commission stated:
Other evidence [of compensatory damages] could have taken the form
of a statement by appellant describing her emotional distress . . .
To properly explain the emotional distress, such statements should
include detailed information on physical or behavioral manifestations of
the distress, if any, and any other information on the intensity of the
distress, information on the duration of the distress, and examples of
how the distress affected appellant day to day, both on and off the job.
Carle, EEOC Appeal No. 01922369.
In the present case, we find that the agency erred by dismissing
appellant's complaint on the grounds of mootness. We find that
appellant has submitted evidence of the incurred compensatory damages
sufficient to preclude dismissal for mootness. In addition, in the
instant case, appellant's complaint alleged that she was discriminated
against and harassed from February 11, 1994 through February 18, 1994.
Appellant's complaint describes a series of allegedly harassing incidents
that occurred during that time period. The agency's final decision
did not address appellant's allegations concerning being sent to an
agency physician on February 16, 1994, and being forced to go to the
hospital on February 18, 1994, and be sent for psychiatric evaluation.
The agency dismissed appellant's complaint for failure to state a claim
without addressing all of the allegations in appellant's complaint.
In dismissing appellant's change in work schedule allegation, it failed to
determine whether if taken together, all of the allegations in appellant's
complaint would rise to the level of harassment as stated in Cobb, supra.
The Commission therefore determines that the agency erred in dismissing
appellant's complaint for failure to state a claim.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby REVERSED. The complaint is REMANDED to the agency for processing
in accordance with this decision.
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 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. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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 (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:
May 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations