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.