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On July 1, 1997, the Letter of Warning was rescinded and removed from all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appellant's Letter of Warning was rescinded.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