0120091681
07-23-2009
Barbara Rankin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barbara Rankin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091681
Hearing No. 410200800265X
Agency No. 4H300033507
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 24, 2008, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of the events at issue, complainant was employed by the
agency as a letter carrier in Lilburn, Georgia. In an EEO complaint
filed on December 29, 2007, complainant alleged that she was subjected
to discrimination on the bases of age (59) and reprisal for filing
the current complaint when, since approximately March 2007, she was
subjected to continuing harassment by her first level supervisor.
Complainant further alleged that she complained about the harassment on
several occasions to the Postmaster, but she did nothing about it.
On January 23, 2008, the agency issued a letter partially dismissing and
partially accepting portions of the complaint. Specifically, the agency
accepted an issue concerning a September 19, 2007 seven-day suspension
on the charge of leaving the mail. The agency dismissed for failure to
state a claim what it characterized as an issue concerning a September
11, 2007 letter of warning for taking an extended break, on the basis
that complainant was no longer aggrieved because the letter of warning
had been reduced to an official discussion. Following an investigation
into the accepted issue, complainant requested a hearing before an EEOC
Administrative Judge (AJ).
On September 9, 2008, the agency filed a motion with the AJ to dismiss
the complaint in its entirely. The agency argued that the suspension was
reduced to a letter of warning which subsequently was removed from her
record. The agency noted that complainant alleged a claim of reprisal,
but argued that complainant indicated her claim of reprisal was based
on the instant complaint rather than any prior protected activity.
Further, complainant alleged discrimination based on her age under
the ADEA. There are no compensatory damages available to complainant.
Therefore, the agency asserted that the matter was moot. In response to
the agency's motion, complainant indicated that she had been subjected
to harassment by the agency due to her age since March 2007.
On December 1, 2008, the AJ issued her decision remanding the
matter to the agency for dismissal of the complaint. The AJ noted
that the suspension had been reduced and subsequently removed from
complainant's employment record. Further, because complainant alleged
age discrimination, she would not be entitled to compensatory damages.
As such, the AJ determined that complainant's claim concerning the
suspension was moot.
On December 24, 2008, the agency issued its final decision implementing
the AJ's decision. Complainant appealed asserting that she had been
subjected to harassment and that the matter should be remanded for a
hearing before an AJ.
As an initial matter, we find that complainant's complaint has been
mischaracterized throughout its processing. A fair reading of the
complaint and related materials, complainant's affidavit provided during
the investigation, her response to the agency's motion to dismiss
and her statement on appeal, reveals that complainant is essentially
alleging a single claim of ongoing harassment by management since March
2007 that included, by was not limited to, the letter of warning and
seven-day suspension issued in September 2007. In addition to the two
disciplinary actions, complainant alleged that the supervisor demeaned
her on an almost daily basis, including telling her that she needed to
work faster, that she needed to retire, and that she was working slowly
in order to work overtime. Complainant also noted that the supervisor
threatened her for drinking water. Complainant further stated that
when she complained on a number of occasions to the Postmaster about the
supervisor's behavior, not only did the Postmaster do nothing to stop him,
she also told complainant that maybe she needed to retire.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) authorizes
the dismissal of a complaint that fails to state a claim. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age
or disabling condition. 29 C.F.R. �� 1614.103, .106(a). We first note
that complainant alleged discrimination on the basis of retaliation and
indicated that her protected activity was the instant EEO complaint filed
after the events at issue. Therefore, we find that there is no evidence
to show that complainant participated in any prior protected activity.
As such, we agree that complainant's basis of retaliation was properly
dismissed.
With regard to the remaining age claim, we will first examine the two
disciplinary actions as discrete acts. The regulation set forth at 29
C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the
issues raised therein are moot. To determine whether the issues raised in
complainant's complaint are moot, the factfinder 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. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
Upon review of the record, we agree with the agency that the letter of
warning, when examined as a discrete act, was moot as it was reduced to
an official discussion and under the ADEA complainant is not entitled
to compensatory damages. For the same reason, we agree with the AJ's
determination that the suspension, as a discrete act, was also rendered
moot when it was rescinded and removed from her record.
However, complainant's overall harassment/hostile work environment claim
was not addressed by the AJ or the agency and both the suspension and
the letter of warning should be considered as evidence in support of the
alleged harassment. In considering such a claim, the Commission will
examine whether a complainant's allegations, when considered together
and assumed to be true, are sufficient to state a hostile or abusive
work environment claim. See Estate of Routson v. National Aeronautics
and Space Administration, EEOC Request No. 05970388 (February 26, 1999).
Even if harassing conduct produces no tangible effects, a complainant
may assert a cause of action if the discriminatory conduct was so severe
or pervasive that it created a work environment abusive to complainant
because of her race, gender, religion, national origin, age or disability.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November
22, 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22
(1993)) request for reconsideration denied EEOC Request No. 05970995
(May 20, 1999). In applying this standard, the Commission finds that
complainant has alleged facts sufficient to state a viable claim of
hostile work environment.
Therefore, the Commission reverses the agency's decision to dismiss the
complaint and remands complainant's claim of age-based harassment/hostile
work environment in accordance with the Order below.
ORDER
The agency is ordered to process the remanded complaint by conducting a
supplemental investigation into the harassment/hostile work environment
claim (which should include, but not be limited to, the letter of warning
and suspension as evidence in support of the claim) in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within ninety (90) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the complainant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K1208)
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 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant 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. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (R0408)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 23, 2009
__________________
Date
2
0120091681
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091681