01a55225
12-20-2005
Anne Rivera-Quam, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anne Rivera-Quam v. United States Postal Service
01A55225
December 20, 2005
.
Anne Rivera-Quam,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55225
Agency No. 1J-531-0074-05
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 14, 2005, dismissing her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. In her complaint, complainant
alleged that she was subjected to discrimination on the bases of race
(White) and disability when on May 9, 2005, she was placed in a non-pay,
non-duty status pending the completion of an investigation to proffering
false information related to an on-the-job injury.
The agency dismissed the complaint for failure to state a claim pursuant
to 29 C.F.R. � 1614.107(a)(1). In particular, the agency found that
complainant filed a grievance on a subsequent removal action issued in
response to the investigation. The grievance was settled. The agency
believed that the complaint at hand was a collateral attack against the
grievance process. As such, the agency dismissed the matter for failure
to state a claim.
Complainant appealed arguing that the matter is independent of the
grievance process. Complainant contended that she in no way was attacking
the grievance process and noted that she is not required to elect between
the grievance process and her Title VII rights.
The Commission finds that the dismissal is more properly analyzed as to
whether it has been rendered moot by the settlement agreement reached
subsequent to complainant's grievance. 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 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. 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.
We determined that the complaint has not been rendered moot. We note that
the agency did not include a copy of the grievance settlement referenced
in its FAD. Therefore, we find that there is no evidence of whether the
May 13, 2005 notice of emergency placement in non-pay, non-duty status
was removed from all of complainant's official records and complainant
received back pay for any wages lost. Further, complainant noted in
her appeal that she sought compensatory damages in her formal complaint.
Because complainant requested compensatory damages, 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 action at issue. See Allen v. United States Postal Serv.,
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
of the complaint is improper. See Rouston v. National Aeronautics and
Space Admin., EEOC Request No. 05970388 (March 18, 1999).
CONCLUSION
Accordingly, the Commission reverses the agency's final decision
dismissing the complaint and remand the complaint for further processing
as ordered below.
ORDER (E0900)
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 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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
(R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 20, 2005
__________________
Date