Sandra Higham, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, New York Metro and Northeast Areas) Agency.

Equal Employment Opportunity CommissionNov 5, 1998
01976794 (E.E.O.C. Nov. 5, 1998)

01976794

11-05-1998

Sandra Higham, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, New York Metro and Northeast Areas) Agency.


Sandra Higham v. United States Postal Service

01976794

November 5, 1998

Sandra Higham, )

Appellant, )

) Appeal No. 01976794

v. ) Agency No. IA-126-0081-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

New York Metro and )

Northeast Areas) )

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 Final Agency Decision (FAD) was issued on August

22, 1997. The appeal was postmarked September 11, 1997. Accordingly,

the appeal is timely, (See 29 C.F.R. � 1614.402(a)), and is accepted in

accordance with EEOC Order 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint by finding her claims moot.

BACKGROUND

A review of the record reflects that on July 7, 1997, appellant,

during the informal EEO counseling process, raised a claim of unlawful

discrimination based upon prior EEO activity and stated that her

supervisor, without justification, reprimanded appellant and two of her

team-mates by issuing a Letter of Warning. In addition, appellant stated

that her supervisor "continues to harass [her] and anyone who works with

[appellant]." On August 4, 1997, appellant filed a formal complaint

alleging unlawful discrimination on the basis of reprisal. Appellant

further alleged that her supervisor issued a Letter of Warning to

appellant and her teammates and that no other similarly-situated employee

received a warning. Appellant requested as corrective action, inter alia,

that her supervisor "cease harassment."

On July 1, 1997, the Letter of Warning was rescinded and removed from all

records and files. On August 22, 1997, the agency dismissed appellant's

complaint finding that the matter was rendered moot by the fact that

appellant's Letter of Warning was rescinded. Appellant thereafter filed

her timely appeal.

ANALYSIS AND FINDINGS

EEOC Regulation C.F.R. �1614.107(e) provides for the dismissal of

a complaint, or portions thereof, when the issues there are moot.

To determine whether the issues raised in appellant's complaint are moot,

the fact-finder must ascertain whether,(1) it can be said with assurance

that there is no reasonable expectation that the alleged violation will

recur; and (2) interim relief or events have completely and irrevocably

eradicated the effects of the alleged discrimination. Moden v. USPS, EEOC

No. 01975088 (June 25, 1998); See also County of Los Angeles v. Davis,

440 U.S. 625, 631 (1979).

A liberal reading of the complaint indicates that appellant alleges:

(1) disparate treatment regarding a term, condition, or privilege of her

employment; and (2) hostile or abusive work environment. However, for

the reasons set forth below, we find that appellant has not sufficiently

alleged facts, when accepted as true, that sufficiently raise a hostile

or abusive work environment claim. Accordingly, rescinding the Letter

of Warning completely and irrevocably eradicates the effects of the

alleged discrimination and renders appellant's complaint moot.

Allegation of Harassment

While the Commission has generally held that a claim of harassment will

not be rendered moot despite the fact that the personnel action has

been entirely rescinded, we find that appellant has not sufficiently

alleged such a claim. Bonk v. Secretary of Transportation, EEOC

No. 01945736 (1995); Yokotobi v. Department of Veteran Affairs, EEOC

Request No. 05910087 (March 28, 1991); Burgess v. USDA, EEOC Decision

No. 01955268 (October 21, 1996);Kelada v. Dept. of Navy, EEOC No. 01952919

(April 15, 1996).

In determining whether a harassment complaint states a claim, the

Commission has repeatedly examined whether a complainant's harassment

allegations, when considered together and assumed to be true, were

sufficient to state a hostile or abusive work environment. Cobb

v. Treasury, EEOC Request No. 05970077 (March 13, 1997). Harassment

is actionable if it is sufficiently severe or pervasive to alter the

conditions of the complainant's employment. Harris v. Forklift Systems,

Inc., 510 U.S. 17, 21 (1993). A 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; Cobb v. Treasury, EEOC Request No. 05970077 (March 13,

1997). The Commission has repeatedly found that allegations of a few

isolated incidents of alleged harassment usually are not sufficient

to state a harassment claim. See, e.g., Miller v. United States Postal

Service, EEOC Request No. 05941016 (June 2, 1995)(an oral admonishment

was not sufficient to state a hostile work environment claim); Phillips

v. Department of Veteran Affairs, EEOC Request No. 05960030 (July 12,

1996) (allegations that supervisor had "verbally attacked" the complainant

on one occasion, attempted to charge him with AWOL, and disagreed with

the time the complainant entered into a sign-in log, were insufficient

to state a harassment claim); Backo v. USPS, EEOC Request No. 05960227

(June 10, 1996)(supervisor's remarks on several occasions, unaccompanied

by any concrete action, were not sufficient to state a claim); Henry

v. USPS, EEOC Request No. 05940695 (February 9, 1995)(an allegation

that, on one occasion, a supervisor questioned the complainant about

his requested schedule revisions, did not state a claim).

Appellant alleges that her supervisor "continues to harass [her] and

anyone who works with [appellant]." However, she only cites one incident

of alleged harassment, the issuance of the Letter of Warning. There

are no allegations of additional harassing actions or comments in the

complaint, nor claims of unwelcome touching in any manner. Accordingly,

the Commission finds that, accepting appellant's allegations as true, they

are not sufficiently severe or pervasive so as to alter the conditions

of employment.

Disparate Treatment Based Upon Prior EEO Activity

Since appellant fails to sufficiently allege a harassment claim, we find

that, following the removal of the Letter of Warning, appellant has not

shown that she currently remains disadvantaged in the terms, conditions,

or privileges of employment. Therefore, the removal constitutes an interim

event that has eradicated the effects of the alleged discrimination and

it can be said with assurance that there is no reasonable expectation

that the alleged violation will recur. See Douglas v. USPS, EEOC Request

No. 0590053 (April 18, 1996)(where a letter of warning is reduced to a

discussion and the letter is expunged from the appellant's records, an

appellant is no longer aggrieved); see also Yeats v. USPS, EEOC Request

No. 05940605 (October 27, 1994).

Accordingly, we AFFIRM the agency's dismissal and determination that

appellant's claims were rendered moot by the removal of the Letter of

Warning.

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(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

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. 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).

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:

Nov 5, 1998

DATE Ronnie Blumenthal, Director

Office of Federal Operations