0120093288
05-03-2012
Laura B. Dilworth, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Laura B. Dilworth,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120093288
Agency No. 4J-600-0103-08
DECISION
On August 8, 2009, Complainant filed an appeal from the Agency's July 5, 2009 final decision concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission accepts the appeal, according to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS in part, and REVERSES in part, the Agency's final decision.
ISSUES PRESENTED
1. Whether the Agency err in procedurally dismissing as moot a discrimination claim involving a letter of warning that was rescinded after a grievance settlement?
2. Whether the Agency err in procedurally dismissing, as a collateral attack on the grievance process, a discrimination claim about being escorted out of a facility after an altercation and placed on emergency off-duty status without pay?
3. Whether Complainant was entitled to a hearing, when her representative failed to timely request a hearing, and Complainant subsequently requested the Agency to issue a final decision?
4. Whether the Agency err in determining that Complainant did not establish a prima facie case of reprisal, where the previous EEO activity occurred in 2005 and the adverse treatments at issue occurred in 2008 and 2009?
5. Whether the Agency err in determining that Complainant failed to show discrimination on the bases of race (Caucasian), color (white), and sex (female)?
BACKGROUND
Complainant worked as a Bulk Mail Carrier at the Agency's Winnetka Post Office in Winnetka, Illinois. She had previously filed an EEO complaint, which settled in April 2005.
In 2007, according to Complainant, she entered into a relationship with a male employee but subsequently ended it. In March 2008, she informed her supervisor about negative tension with the male employee, after he allegedly accused her of throwing a pencil at another employee, refused to move out of her way when she walked by, and tried to walk into her. The supervisor, according to Complainant, believed her allegations and "demoted" the male employee.
Around this time, Complainant felt that her supervisor was not assigning her as much overtime as other employees during the second quarter of fiscal year 2008. She filed a grievance, arguing that her supervisor had failed to rotate overtime opportunities based on seniority, thereby allowing junior workers to earn more overtime than senior workers like her. The Agency agreed to make up the difference in overtime between her and a Hispanic male colleague in the third quarter of 2008.
In July 2008, Complainant was allegedly given the "finger" by a coworker during a disagreement, and a few days later, Complainant called the police after being "verbally assaulted" by a coworker. Management issued Complainant a letter of warning on August 29, 2008, for arguing in July with management and a coworker. After Complainant filed a grievance, the Agency rescinded the letter of warning and removed it from her personnel file.
In November 2008, Complainant requested leave for December 2009. Her supervisor did not grant her leave request at that time, and instead advised her to resubmit her request in August 2009.
On December 24 and 26, 2008, Complainant was involved in altercations with the male employee with whom she had a prior relationship. After the December 26, 2008 altercation, Complainant called the police, telling the officer that she had been walking and carrying two parcels when the male employee abruptly blocked her path and pushed her. She then threw the two parcels at his back. The male employee, on the other hand, told the police that Complainant had nudged him between his chest and stomach and threw parcels at him. He denied initiating any physical contact with Complainant. The police closed the case without finding anything to substantiate an allegation of battery.
After the December 26, 2008 altercation, the Agency escorted Complainant out of the facility and placed her on emergency off-duty status, without pay. On January 12, 2009, the Agency notified Complainant that she would be removed for physically hitting the male employee with two parcels.
On January 23, 2009, Complainant met with management and union officials to discuss the altercation with the male employee. She was not paid for the time spent in that meeting. She then grieved the removal and placement in emergency off-duty status, and in February 2009, the parties settled the grievance. Complainant received 80 hours of back pay, and the notice of removal was reduced to a seven-day suspension.
EEO Complaint
Complainant filed an EEO complaint, alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), color (White), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. from May 2008 to the present, the Agency did not assign her as much overtime as other similarly situated employees;
2. on July 18, 2008, a coworker gave her the "finger";
3. on July 21, 2008, a coworker "verbally assaulted" her to the point where she called the police;
4. on August 29, 2008, the Agency issued her a letter of warning;
5. on November 18, 2008, her supervisor denied her request for leave for the 2009 Christmas holiday;
6. on December 26, 2009, the Agency escorted her out of the facility and placed her on Emergency Off-Duty status without pay;
7. on January 07, 2009, her paystub indicated that she had not been paid for three days of pre-approved annual leave, and the New Year holiday;
8. on January 13, 2009, the Agency issued her a notice of removal;
9. on January 23, 2009, the Agency did not compensate her for attending a meeting with the Officer-In-Charge and union officials.
Partial Dismissal of Claims
The Agency dismissed claims 2, 3, 4, and 6.
* The Agency dismissed claims 2 and 3 for failure to state a claim, reasoning that being given the "finger" and disagreeing with a coworker did not constitute adverse employment actions.
* The Agency dismissed claim 4 for essentially being moot, because the letter of warning had been rescinded and removed from Complainant's file.1
* The Agency dismissed claim 6 because it collaterally attacked the grievance process. Through the grievance process, the parties settled the issue of placement in emergency off-duty status without pay by awarding Complainant 80 hours of back pay. The parties also settled the issue of the notice of removal by reducing it to a seven-day suspension. Because the agreement resolved any and all issues related to the emergency placement and removal actions, the Agency maintained that Complainant could not raise those issues again in another forum.2
Notice of Right to Request a Hearing
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ).
On June 2, 2009, Complainant informed the Agency that she had just personally received the "EEO package" on May 29, 2009. She attributed her delayed response to her representative's failure to open the "EEO package," despite receiving it several weeks ago. Despite the delay, she ultimately requested a final agency decision without a hearing.
Final Agency Decision
The Agency issued a final decision, concluding that Complainant failed to prove discrimination. For the basis of reprisal, the Agency generally found that Complainant did not sufficiently establish a prima facie case, because she did not show a nexus between her prior EEO activity in 2005 and the events at issue in 2008 and 2009.
Even if Complainant established prima facie cases for all the alleged bases, the Agency found that management officials articulated legitimate, nondiscriminatory reasons for their actions.
* For claim 1, Complainant earned less overtime than others mainly because she needed to ride the train into work. Because Complainant did not generally drive to work, it made it hard for management to schedule her for emergency overtime on short notice. In addition, Agency officials maintained that Complainant sometimes declined overtime opportunities or took sick leave or annual leave.
* For claim 5, Complainant's supervisor explained that she denied Complainant's request for leave in December 2009, because it was too early to approve such leave. She advised Complainant to resubmit the leave request at a later date. The supervisor acknowledged that she had previously approved a similar leave request for a male, Hispanic worker. But the supervisor maintained that this was an inadvertent mistake made in the course of approving over 200 leave requests in November 2008. But the supervisor was not going to make the same mistake twice after Complainant attempted to request such leave.
* For claim 7, management explained that Complainant was not paid for several days during the December 2008 holiday season because she was on emergency off-duty status without pay.
* For claim 8, management explained that they were motivated to remove Complainant, and not the male employee, because Complainant physically struck the male employee, and then, according to some witness accounts, taunted the male employee by calling him a "loser" and a "reject." Because Complainant incited and prolonged the altercation, the Agency found it reasonable to remove Complainant and not the male employee.
* For claim 9, management explained that Complainant was not paid for a January 23, 2009 meeting because she was still on emergency off-duty status, without pay. Her non-pay status meant that she was not entitled to compensation for the meeting.
The Agency found that Complainant did not sufficiently demonstrate that the Agency's articulated reasons were pretexts to mask discriminatory motives.
CONTENTIONS ON APPEAL
Complainant first contends that the Agency erred in procedurally dismissing claims 2, 3, 4, and 6. She also maintains that she was entitled to an administrative hearing because she did not personally "receive" the notice of right to request a hearing until weeks after her representative negligently failed to open up the "EEO package."
Complainant next argues that the Agency failed to develop an appropriate factual record because the EEO investigator never questioned union officials who had knowledge of the issues.
On the merits, Complainant maintains that management's explanations were not credible and were therefore pretexts to hide a discriminatory motive.
ANALYSIS AND FINDINGS
Standard of Review
The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. � 1614.110(b). 29 C.F.R. � 1614.405(a).
"The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
Procedural Dismissals of Claims 2, 3, 4, and 6
Claims 2, 3, and 4 involve two verbal disagreements that Complainant had with a coworker in July 2008, and the subsequent letter of warning that was meted out to Complainant by her supervisor in August 2008. Upon review, we find that claims 2 and 3 were properly dismissed on the grounds of failure to state a claim. A hostile or abusive work environment claim requires that an employee allege facts which, if proven true, may indicate that the employee was subjected to harassment that was severe or pervasive enough to alter the conditions of her employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). In making such a determination, the Commission has considered "whether a reasonable person in the employee's circumstances would have found the alleged behavior to be hostile or abusive." Id.
The Commission has repeatedly found that unless the conduct is very severe, a group of isolated incidents will not be regarded as creating a hostile work environment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996). In the instant case, after considering all of the circumstances which includes the frequency of the alleged discriminatory conduct, its severity, whether it was physically threatening or humiliating as opposed to a mere offensive utterance, and whether it interfered with the Complainant's work performance; the Commission finds that claims 2 and 3 are isolated incidents that even when viewed together do not state a claim of harassment.
But for claim 4, in which the Agency rescinded and removed the August 29, 2008 letter of warning as a result of a grievance settlement, we find that the issue is not moot because Complainant requested compensatory damages in the amount of $1,000 to $2,000.3
Claim 6 concerns the Agency's escorting of Complainant out of the facility and placing her on emergency off-duty status without pay. Notwithstanding the Agency's contention that this claim was a collateral attack on the grievance process, we find that the more appropriate analysis is whether the claim is now moot due to the grievance settlement. We find that this claim is not moot simply because the Agency awarded Complainant 80 hours of back pay for the time she was placed on emergency off-duty status without pay. As previously mentioned above, Complainant requested compensatory damages in the amount of $1,000 to $2,000. Thus, we find that the Agency erred in procedurally dismissing claim 6.
Therefore, we find that the Agency did not err in dismissing claims 2 and 3. But we determine that the Agency erred in procedurally dismissing claims 4 and 6.
Adequacy of Record
We find that the record was adequately developed for all the claims, except for claim 4, because the supervisor was not questioned about this claim.4 The record contains interview notes, police reports, and grievance documents that are sufficiently detailed and varied to allow a reasonable fact finder to draw conclusions about whether discrimination occurred.
We note that even though the Agency improperly dismissed claim 6, the record contains adequate evidence to address the merits of this claim without the need to remand it.5 The affidavits of Complainant and her supervisor discuss the factors and circumstances for escorting her out of the facility and placing her on emergency off-duty status on December 26, 2008.
Hearing Request
Although Complainant argues that she should not be penalized for the error made by her representative for not timely filing the hearing request, we note that a complainant is responsible for proceeding with the processing of a complaint whether or not the complainant has designated a representative. See 29 C.F.R. � 1614.605(e). Moreover, Complainant never indicated to the Agency her desire for a hearing. Rather, on June 2, 2009, Complainant wrote to the Agency: "Anyways, I'm requesting a final agency decision without a hearing." Given that Complainant never requested a hearing, we find that the Agency did not err in deciding to issue a final agency decision.
Disparate Treatment Claims
a. Reprisal
To establish a prima facie case of reprisal, Complainant must show that: (1) she engaged in prior protected activity; (2) the Agency was aware of the protected activity; (3) she was subsequently subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. McMillen v. U.S. Postal Serv., EEOC Appeal No. 0120072556 (Feb. 26, 2009); Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A complainant typically demonstrates a link between the protected activity and adverse treatment by evidence that: (a) the adverse action occurred shortly after the protected activity, and (b) the person who undertook the adverse action was aware of the complainant's protected activity before taking the action. EEOC Compliance Manual, Section 8: Retaliation, EEOC No. 915.003, at 8-18 (May 20, 1998).
Here, we find that Complainant did not present sufficient evidence to show a link between her prior EEO activity in 2005 and the adverse treatment that occurred years later in 2008 and 2009. In her affidavit, Complainant maintained that her supervisor was angry in 2005 and holds grudges for long periods of time. However, we find this to be a speculative statement, and insufficient by itself to show that the supervisor's actions in 2008 and 2009 were motivated by the EEO complaint that was closed three years earlier. Therefore, we find that Complainant did not establish a prima facie case of reprisal.
b. Other bases
To prevail in a disparate treatment claim, a complainant generally must first establish a prima facie case of discrimination by demonstrating that she (1) is a member of a protected class, (2) was subjected to adverse treatment, and (3) was treated differently than otherwise similarly situated employees outside of the protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002).
If a complainant establishes a prima facie case, the burden then shifts to the Agency to articulate legitimate, non-discriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256; Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Assuming, for the sake of argument only, that Complainant established prima facie cases of race, color, and sex discrimination, we find that the Agency met its burden of articulating legitimate, non-discriminatory reasons for its actions, and that Complainant did not show that those explanations, more likely than not, were pretexts for discrimination.
For claim 1, Complainant argued that she received less overtime than male or other non-white employees in the second fiscal quarter of 2008 because she was the only white, Caucasian female clerk in the office. To explain the discrepancy in overtime, management officials attributed most of the difference to Complainant's need to take the train into work, which made it harder to schedule her for emergency overtime opportunities on short notice. Management also testified that Complainant occasionally declined the overtime opportunities that were offered to her and sometimes took sick leave or annual leave.
On appeal, Complainant maintains that her need to take a train into work was not a legitimate reason to deny her overtime opportunities, because it was possible for her to go into work on short notice. For example, to be at work before 10:00 a.m. on a Saturday morning, Complainant could take a Saturday morning train from 1:00 a.m. to 7:00 a.m., and then either take a taxi, rent a car, borrow a car, or have a coworker drive her to work.
The fact that it was possible for Complainant to come into work, despite the transportation obstacles, is not sufficient to demonstrate that management was motivated by the intersection of Complainant's race, color, and sex. An employer's business decision cannot be found discriminatory simply because it appears that the employer acted unwisely, or that the employer's decision was in error or a misjudgment. EEOC Compliance Manual, Section 15: Race and Color Discrimination, EEOC No. 915.003, at 15-17 (April 19, 2006). Here, Complainant has merely shown that management may have been mistaken in believing that she could not come into work on short notice. But this alone does not show that management's decision was motivated because of animus to white, Caucasian females.
For claim 5, Complainant maintained that her supervisor denied her November 2008 request for leave for December 2009, when the supervisor had approved a similar leave request for a male, Hispanic employee. The supervisor testified that it was too early to approve leave that far in advance, and that her approval of the request for leave from the male, Hispanic employee was an inadvertent mistake made during the course of approving over 200 leave requests in November 2008. We find that Complainant has not presented any evidence to suggest that the supervisor's prior approval of another employee's leave request was anything other than an inadvertent mistake.
For claims 6, 7, 8, and 9, Complainant felt that management treated her differently because of her sex after she got into an altercation with a male employee on December 26, 2008. Management chose to discipline only Complainant, and not the male employee, by escorting her out of the facility, placing her on emergency off-duty status without pay, not paying her for the remaining Christmas and New Years leave, attempting to remove her, and not paying her for attending a meeting with management and union officials to explain her actions on December 26, 2008.
Complainant's supervisor averred that on December 26, 2008, Complainant walked into the male employee, elbowed him in the stomach or side, and threw two parcels at him, hitting him in the head or neck. Because Complainant had physically struck the male employee and threw two parcels at him, the supervisor found this behavior to be improper and had Complainant escorted out of the facility, placed on emergency off-duty status without pay, and notified her of her removal. Being placed in a continuing no-pay status on December 26, 2008 meant that Complainant was not entitled to compensation for pre-approved annual leave for December 29-31, 2008 and the New Year holiday, and the January 2009 meeting she attended to explain her actions before management and union officials.
Complainant argues that the supervisor's articulated reasons are pretextual. She maintains that the supervisor had not personally talked with any witnesses before placing her on emergency off-duty status. Therefore, the decision to place only her on off-duty status, and not the male employee, demonstrated a bias in favor of the male employee. To further demonstrate this alleged favoritism of the male employee, Complainant alleged that the supervisor took the male employee out to lunch the following Wednesday. Complainant also disputes the factual findings of the supervisor, maintaining that the male employee had blocked her path and pushed her, before she justifiably defended herself by throwing two light parcels that hit him in the back, not the head or neck.
We find that Complainant has not sufficiently demonstrated pretext. First, we emphasize that nine months earlier in March 2008, the supervisor had, in Complainant's words, "believed" her when she complained about harassment by the male employee. According to Complainant, the supervisor responded to her allegations by "demoting" the male employee. We find the supervisor's prior response to Complainant's harassment complaint undermines Complainant's assertion that the supervisor was inherently biased in favor of the male employee, and not her. Also, it appears that the supervisor adhered to the relevant personnel policies and practices when she placed Complainant on emergency off-duty status before investigating the altercation. According to the affidavit of the acting Postmaster of the facility, an employee can be immediately placed on an off-duty status where the employee may be injurious to others. Therefore, the timing of the placement in off-duty status (before a full-fledged investigation was done), does not, by itself, demonstrate that the decision was motivated by animus against females. Overall, we find no definitive indication that the supervisor acted because of Complainant's sex, rather than on what she heard from various witnesses about the actions of Complainant and the male employee.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's dismissal of claims 2 and 3, and the findings of no discrimination for claims 1, 5, 6, 7, 8, and 9. We REVERSE the Agency's dismissal of claim 4 and REMAND claim 4 to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded 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 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 (K06101)
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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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
__5/3/12________________
Date
1 We note that Complainant's affidavit includes testimony about this issue.
2 We note that the Agency investigated this claim by questioning Complainant's supervisor about her actions. The record contains the supervisor's affidavit explaining why Complainant was escorted out of the building and placed on emergency off-duty status without pay.
3 Where a complainant requests compensatory damages during the processing of the complaint, the Agency is obliged to request from the complainant objective evidence of such damages. In this case, the Agency did not request objective evidence of compensatory damages from Complainant. Should Complainant prevail in her claim, the possibility of an award of compensatory damages exists, and Complainant's claim is not moot. See Glover v. U.S. Postal Serv., EEOC Appeal No. 01930696 (Dec. 9, 1993).
4 We note, however, that Complainant's affidavit includes testimony about the letter of warning. See Complainant aff., at 17-18; 21-32.
5 See, e.g., Song v. Securities and Exchange Commission, EEOC Appeal No. 0120083242 (Sept. 2, 2012) (finding that the record contained adequate evidence to address the merits of the complainant's claim without the need to remand this matter).
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0120093288
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093288