Mary Ann Callahan, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 5, 1999
01976689 (E.E.O.C. May. 5, 1999)

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