01A60459
04-21-2006
Deborah Szeredy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deborah Szeredy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60459
Agency No. 1A-126-0025-01
Hearing No. 160-2004-00323X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged discrimination based on retaliation (prior EEO
activity) when, on October 31, 2001, she was placed in an emergency
placement suspension. After a careful review of the record, the Commission
finds that issuance of summary judgment was appropriate, as no genuine
dispute of material fact exists. We find that the Administrative Judges's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Further, construing the
evidence to be most favorable to complainant, we note that she failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus. Accordingly, we affirm the agency's final action
with respect to complainant being placed in an emergency placement
suspension.
The record also indicates that, in addition to the issue addressed above,
complainant alleged that she was subjected to retaliation when: (1) at
various times from April 2001 through March 2002, while participating as a
representative in the EEO process, management allegedly limited her ability
to represent individuals; (2) in November 2001, she was denied access to
customer window services; (3) on November 12, 2001, she was exposed to
anthrax and denied medical attention; (4) on November 12, 2001, she was
issued a Letter of Warning; and (5) on March 5, 2002, she was denied access
to the mediation process. The agency, in a letter dated May 28, 2003,
informed complainant that it would not investigate the above 5 allegations.
Specifically, the agency found that issues (1), (2) and (5) failed to state
a claim of discrimination because complainant did not establish that she
was aggrieved. With respect to issues (3) and (4), the agency found that
these matters were moot because a test revealed that anthrax was not
present in the workplace and complainant was authorized medical treatment
on November 14, 2001. Furthermore, the Letter of Warning was resolved on
December 12, 2001. The Administrative Judge determined that these five
issues were properly dismissed.
With respect to issues (1), (2) and (5), we find that these matters were
properly dismissed on the grounds that complainant failed to state a claim.
Issues (1) and (2) involved complainant's contention that management was
limiting her in her capacity as a representative of other employees.
Complainant did not, however, establish that she personally suffered a loss
to a term, condition or privilege of her employment for which there is a
remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Moreover, with respect to issue (5), the Commission's
Management Directive makes clear that, "[A]n agency's decision not to
engage in ADR, or not to make ADR available for a particular case, or an
agency failure to provide a neutral, cannot be made the subject of an EEO
complaint." See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), 3-3 (November 9, 1999).
Notwithstanding the above, we find that the agency erred by dismissing
issues (3) and (4), on the grounds that they are moot. To determine
whether an allegation is 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.
Although the record indicates that complainant was provided interim relief
set forth in the agency's May 23, 2003 letter, we do not find that the
agency satisfied the second criteria of the Davis test. In this regard, we
note complainant's statement in her affidavit that, "Obviously there should
also be some compensatory damages for the emotional pain and suffering . .
. ." Because complainant sought compensatory damages, the agency should
have requested that she 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 Service, EEOC
Request No. 05970672 (June 12, 1998); Benton v. Department of Defense, EEOC
Appeal No. 01932422 (December 3, 1993). Therefore, as the issue of
compensatory damages was not addressed, we find that dismissal of this
claim on the grounds that it was rendered moot was improper. See Rouston
v. National Aeronautics and Space Administration, EEOC Request No. 05970388
(March 18, 1999). The agency's decision not to investigate issues (3) and
(4) is reversed and these matters are remanded in accordance with the Order
below.
ORDER (E0900)
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 (K0900)
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)(Supp. V 1993). 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
_______04-21-06___________
Date