0120140691
10-17-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120140691
Agency No. 4G-760-0098-13
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 6, 2013, dismissing a formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Letter Carrier at the Agency's Lone Star Station facility in Amarillo, Texas.
On July 6, 2013, Complainant initiated EEO Counselor contact. Complainant alleged that on June 7, 2013 she was charged with 12 units of Leave Without Pay (LWOP) for pay period 12. The EEO Counselor noted that a review of the Complainant's pay records showed that the 12 units of LWOP was charged to Complainant for pay period 12, but was then corrected in pay period 16. Supervisor LT stated that the charge was corrected on July 17, 2013, for pay period 16. Complainant acknowledged this correction on July 25, 2013 through the Agency's AdjustPay System.
On October 21, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex and age when:
1. On May 23, 2013, Complainant was charged with 12 units of LWOP.
On November 6, 2013, the Agency issued the instant final decision. Therein, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved.
Alternatively, the Agency also dismissed the formal complaint on the grounds of mootness, pursuant to 29 C.F.R. �1614.107(a)(5). The Agency found that it had provided Complainant with all the relief which she had requested. The Agency found that by compensating Complainant the 12 units of LWOP, it had irrevocably eradicated the effects of the alleged discrimination and that there was no reasonable expectation that the violation would reoccur.
The instant appeal followed. On appeal, Complainant asserts that the Agency had previously falsified her LWOP records on at least eight occasions.
In response, the Agency reiterates that its dismissal was appropriate for the reasons set forth in its final decision.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission notes that there appears to be some inconsistency regarding the date of the alleged discrimination. However, a fair reading of the record reflects that the alleged discriminatory event occurred on or about May 23, 2013.
Dismissal: Failure to State a Claim
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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; �1614.106(a). The Commission's Federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
We determine that Complainant has addressed a personal loss or harm to a term, condition or privilege of employment for which there is a remedy.
Alternative Dismissal Grounds: Mootness
The Agency determined that even if Complainant stated a claim, the Agency had taken steps to correct the problem, thereby rendering the instant claim moot. The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the claims raised therein are moot. To determine whether the claim raised in complainant's complaint are moot, the trier of fact 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.
The Commission has held that an agency must address the issue of compensatory damages when a complainant shows objective evidence that she has incurred compensatory damages, and that the damages are related to the alleged discrimination. Jackson v. United States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request for reconsideration denied, EEOC Request No. 05930306 (February 1, 1993). Should complainant prevail on this complaint, the possibility of an award of compensatory damages exists. See Glover v. United States Postal Service, EEOC Appeal No. 01930696 (December 9, 1993).
In the instant case, Complainant did not expressly request compensatory damages. However, Complainant requested to "to be made whole." We determine that such a broad request for remedies can be reasonably construed as including payment of compensatory damages. As such, the Agency should have requested that Complainant provide some objective proof of the alleged damages incurred, as well as objective evidence linking those damages to the adverse actions at issue. See Allen v. United States Postal Service, EEOC Request No. 05970672 (June 12, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422 (December 3, 1993). As the Agency did not address the issue of compensatory damages, we find that dismissal on the alternative grounds that it was rendered moot was improper. See Rouston v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (March 18, 1999).
Furthermore, even if Complainant had not requested compensatory damages, Complainant asserts that in the past, the Agency has engaged in a repeated practice of improperly charging her units of LWOP. As such, the Agency has not demonstrated that it has met the first prong of the County of Los Angeles v. Davis test set forth above.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint and we REMAND this matter to the Agency in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. 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 (K0610)
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. See29 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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
October 17, 2014
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
__________________
Date
______________________________
Compliance and Control Division
2
0120140691
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120140691