0120091608
08-26-2009
Ryan Rue, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ryan Rue,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091608
Agency No. 4G-870-0089-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 29, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of national origin (French/German/Scottish), sex (male),
color (White), and reprisal for this current complaint when:
1. On August 11, 2008, complainant received a letter of warning; and
2. Ongoing from August 11, 2008, complainant has been nitpicked and
degraded daily and told that he was not doing his part.
The agency issued its notice dated December 17, 2008, to complainant
accepting claim (1) for further processing and dismissing claim (2)
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The agency indicated that claim (2) was not sufficiently severe or
pervasive to state a claim of harassment. Subsequently, the agency
issued its final decision dated January 29, 2009, dismissing claim
(1) also pursuant to 29 C.F.R. � 1614.107(a)(1). As to claim (1),
the agency indicated that complainant had raised the letter of warning
in the agency's grievance procedure. The grievance procedure resulted
in the rescission of the Letter at issue in claim (1). Further, the
agency asserted that complainant's claim for compensatory damages does
not render his claim actionable. Therefore, the agency dismissed the
matter for failure to state a claim.
Complainant appealed asserting that he did in fact state a claim.
The agency requests that the Commission uphold its dismissal.
The agency notes that complainant was provided with an opportunity to
receive compensatory damages through the grievance process. Therefore,
complainant was not entitled to any further damages. As such, the agency
argues that it properly dismissed the matter.
ANALYSIS AND FINDINGS
As an initial matter, we find that complainant's complaint has been
mischaracterized throughout its processing. A fair reading of the
complaint reveals that complainant is essentially alleging a single claim
of ongoing harassment by management since August 2008 that included,
by was not limited to, the letter of warning. In addition to the
disciplinary action, complainant alleged that the supervisor demeaned
him and nitpicked him on an almost daily basis.
As to the discrete act of the letter of warning, we note that the agency
dismissed claim (1) for failure to state a claim. However, based upon
review of the record, we find that the agency should have dismissed the
matter as moot. 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.
Further, the grievance procedure allowed for compensatory damages and
complainant was provided compensation for his doctor's visit on August 2,
2009 and mileage. Therefore, we agree with the agency's determination
that the letter of warning, as a discrete act, was rendered moot when
it was rescinded and removed from his record.
Upon review of the record, the Commission finds that the agency
improperly separated a single claim of harassment into two separate
claims. In his complaint, complainant alleged a series of events which
allegedly occurred resulting in the issuance of the letter of warning.
Specifically, complainant alleged that he was subjected to harassment
which created a hostile work environment. Instead of treating these
events as incidents of the claim of harassment, however, the agency looked
at them individually. Thus, we find that the agency acted improperly by
treating matters raised in complainant's complaint in a piecemeal manner.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994) (an agency should not ignore the "pattern aspect"
of a complainant's claims and define the issues in a piecemeal manner
where an analogous theme unites the matter complained of).
However, complainant's overall harassment/hostile work environment
claim was not addressed by the agency 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.
CONCLUSION
Therefore, the Commission reverses the agency's decision to dismiss the
complaint and remands complainant's claim of harassment/hostile work
environment in accordance with the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 one hundred fifty (150)
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
August 26, 2009
__________________
Date
2
0120091608
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091608