Rosa L. Delgado, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 14, 1999
01991643 (E.E.O.C. Dec. 14, 1999)

01991643

12-14-1999

Rosa L. Delgado, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Rosa L. Delgado v. United States Postal Service

01991643

December 14, 1999

Rosa L. Delgado, )

Complainant, )

)

v. ) Appeal No. 01991643

) Agency No. 1A-073-1029-96

) Hearing No. 170-97-8492X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On December 18, 1998, complainant filed a timely appeal of a final agency

decision, which was dated November 19, 1998, dismissing her complaint

as moot.<1>

In her July 8, 1996 complaint, complainant alleged that she was

discriminated against based on race (Hispanic/brown), national origin

(Peru), and sex (female) when she was subjected to sexual harassment from

her former supervisor from April 1995, to March 1996. Specifically,

complainant alleged that on February 29, 1996, and March 8, 1996, the

supervisor made abusive and sexual remarks about her and her relationship

with her male coworker which created a hostile work environment and

caused her emotional distress to her. Complainant stated that she tried

to informally resolve the matter through the union but to no avail until

she filed a CA-2 for on-the-job stress due to the alleged harassment.

Complainant indicated that after she filed the CA-2, management granted

her request to move to another work place away from the responsible

official. The record indicates that complainant's CA-2 form was filed on

March 13, 1996. As relief, complainant requested $10,000.00 in punitive

damages and that the responsible official be removed from his supervisory

position. Complainant also requested that she never be made to work for

that responsible official again; all the managers involved be reprimanded;

and all supervisors at the agency receive training on sexual harassment.

After completion of the investigation of the complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). Prior to

the hearing, the AJ issued a decision canceling the hearing upon finding

that the complaint was moot and recommended that the agency dismiss the

complaint accordingly. Specifically, noting complainant's withdrawal of

her claim for compensatory damages on October 15, 1996, the AJ stated

that an agency letter dated November 12, 1998, provided complainant an

unconditional, unilateral promise that the alleged conduct would never

recur in the future and the responsible supervisor would not be assigned

to supervisor complainant. The AJ determined that the agency's interim

relief constituted full and complete relief for complainant with regard

to her complaint.

In its final decision, the agency dismissed the complaint as moot by

concurring with the AJ's determination. The agency also dismissed the

complaint on the alternative grounds of failure to state a claim since

the alleged remarks made on February 29, 1996 and March 8, 1996, were

two isolated incidents that did not recur and management took immediate

steps to place complainant under different supervision.

On appeal, complainant, through her representative, contends that

the agency's final decision contradicts the essence of the complaint

by denying that she was ever subjected to sexual harassment by the

responsible supervisor and indicates its non-willingness to abide by

its November 12, 1998 promise.

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.107(a)(5)) provides that the agency

shall dismiss an entire complaint that is moot. The issues raised in

a complaint of discrimination are no longer in dispute (1) if it can

be said with assurance that there is no reasonable expectation that

the alleged violation will recur, and (2) if 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).

EEOC Notice N-915-050 (March 19, 1990), "Policy Guidance on Current

Issues of Sexual Harassment," provides that when an employer receives

a complaint or otherwise learns of alleged sexual harassment in the

workplace, the employer should investigate promptly and thoroughly.

The employer should take immediate and appropriate corrective action by

doing whatever is necessary to end the harassment, make the victim whole

by restoring lost employment benefits or opportunities, and prevent the

misconduct from recurring. Disciplinary action against the offending

supervisor or employee, ranging from reprimand to discharge, may be

necessary. Generally, the corrective action should reflect the severity

of the conduct. See Waltman v. International Paper Complainant., 875 F.2d

at 479 (appropriateness of remedial action will depend on the severity

and persistence of the harassment and the effectiveness of any initial

remedial steps); Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307,

309-10, "assessed proportionately to the seriousness of the offense").

The employer should make follow-up inquiries to ensure the harassment

has not resume and the victim has not suffered retaliation.

The record indicates that although complainant alleged that the sexual

harassment occurred since April 1995, she did not bring the matter to

the attention of management until the end of February or the beginning

of March, 1996. When management learned of the alleged harassment,

complainant's request to be reassigned to a new work place away from the

responsible official was granted on March 13, 1996. Also, the agency

promised in writing that the alleged harassment would not recur and the

responsible official would not be assigned to supervise complainant

in the future. On appeal, complainant does not indicate that she

has been harassed by the responsible official after her transfer on

March 13, 1996. Furthermore, we note that complainant withdrew her

claim for compensatory damages. We also note that although complainant

requested punitive damages, "punitive damages are not available to Federal

employees." See Jones v. Department of Health and Human Services, EEOC

Request No. 05940377 (January 23, 1995), citing Graham v. United States

Postal Service, EEOC Request No. 05940132 (May 19, 1994). Accordingly,

the agency's final decision is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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. 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 (Z1199)

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:

December 14, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.