01a53778
09-12-2005
Colleen T. Bailey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Colleen T. Bailey v. United States Postal Service
01A53778
09-12-05
.
Colleen T. Bailey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01A53778
Agency No. 1H-374-0020-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 7, 2005, dismissing her complaint of unlawful
employment discrimination. In her complaint, complainant alleged that
she was subjected to discrimination on the basis of reprisal for prior
EEO activity when: (1) on February 2, 2005, she was denied sick leave for
the remainder of her tour after becoming ill; and (2) the MDO reacted in
a hostile manner when the Acting SDO informed the MDO of complainant's
illness.<1>
The agency dismissed the sick-leave claim as moot pursuant to 29 C.F.R. �
1614.107(a)(5). 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. County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Dep't 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.
However, where a complainant alleges that she is entitled to compensatory
damages, relief may be available, and therefore, the claim is not moot.
Kyriazi v. Dep't of Defense, EEOC Request No. 05930086 (March 4, 1994).
In this case, on February 2, 2005, when complainant became ill and
requested the Acting SDO take her to the hospital, the Acting SDO
failed to input the time complainant was at the hospital as sick leave.
On March 29, 2005, complainant was granted the use of 3.5 hours of
sick leave for the February 2, 2005 incident. However, the record
also reflects that complainant requested compensatory damages on her
formal complaint. Complainant requested as a remedy that she receive
the �maximum compensation for being retaliated against. A Permanent
Full-Time regular position with Fridays and Saturdays off on tour 2
(two), at the Memphis Mail Center on Louis Carruthers.� Complainant's
Formal Complaint. Since there has been no analysis on the issue of
compensatory damages in this case, the Commission finds that the agency
erred in finding complainant's sick leave claim to be moot. The case
would only be moot should the agency pay her proven compensatory damages
or if the agency were to show that complainant was not so entitled.
Therefore, the Commission must order the complaint reinstated at the
point processing ceased.<2>
The agency dismissed complainant's claim that the MDO reacted in a
hostile manner when the Acting SDO informed the MDO of complainant's
illness because complainant failed to establish that she was aggrieved,
and therefore failed to state a claim. The regulation set forth at 29
C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall
dismiss a complaint that fails to state a claim. The Commission 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. Dep't of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). In determining whether a
harassment complaint states a claim in cases where a complainant had
not alleged disparate treatment regarding a specific term, condition,
or privilege of employment, the Commission has long held that claims of
a few isolated incidents of alleged harassment usually are not sufficient
to state a harassment claim. Phillips v. Dep't of Veterans Affairs, EEOC
Request No. 05960030 (July 12, 1996); Banks v. Health and Human Serv.,
EEOC Request No. 05940481 (February 16, 1995). Moreover, the Commission
has repeatedly found that remarks or comments unaccompanied by a concrete
agency action usually are not a direct and personal deprivation sufficient
to render an individual aggrieved. Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal
Service, EEOC Request No.05940695 (February 9, 1995). The Commission
finds that complainant failed to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1) since she failed to establish how the MDO's screaming and
yelling over the radio when the SDO informed the MDO of complainant's
illness rendered her aggrieved. Therefore, the Commission concludes
that the agency appropriately dismissed her claim.
Accordingly, the agency's FAD is affirmed in-part and reversed and
remanded in-part for further processing as ORDERED below.
ORDER
The agency is ordered to process the remanded claim concerning her being
denied the use of 3.5 hours of sick leave 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 (T0900)
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 (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
____09-12-05______________
Date
1 The record fails to identify the full
title of the positions �MDO� and �SDO.�
2If the agency were to award proven damages or, having given complainant
the opportunity to demonstrate such damages and finding she was not
entitled, it may again dismiss the complaint as moot. Should complainant
disagree with the amount awarded or take exception to the finding that
she was not entitled to damages, she may appeal the dismissal to the
Commission.