01A24352_r
06-10-2003
Enrique Zappata, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Enrique Zappata v. United States Postal Service
01A24352
June 10, 2003
.
Enrique Zappata,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24352
Agency No. 4E-852-0024-02
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 11, 2002, dismissing his 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of national origin (Hispanic) when:
On September 5 or 6, 2001, complainant was told that he could not have
a radio at work;
On September 4-13, 2001, complainant was told that he incorrectly sent
his dispatch;
On September 14, 2001, complainant was put on hold for twenty minutes
while calling in his absence because of his father's death;
On October 16, 2001, complainant's medical documentation in Spanish was
not accepted for sick leave in the amount of 72 hours; and
On November 28, 2001, complainant was given two official discussions-
one for delivery confirmation and the other for talking.
The agency dismissed issues (1), (2), and (3) pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. Alternatively, the agency dismissed issues (1), (2), and (3)
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(1), for
failure to state a claim. Specifically, the agency noted that there is no
evidence that because he was told he sent the dispatch incorrectly or put
on hold, he suffered any measurable personal harm, i.e., no discipline was
issued, he suffered no monetary loss, there were no changes in his hours,
wages, and/or terms and conditions of employment. With regard to issue
(4), the agency dismissed this issue pursuant to 29 C.F.R. � 1614.107(a)(
5), on the grounds that it was moot. The agency noted that corrective
action was taken in that the agency changed 72 hours of AWOL to 72 hours
of sick leave. With regard to issue (5), the agency dismissed this
issue for failure to state a claim. The agency noted that complainant
did not suffer any measurable personal harm as a result of the discussion.
On appeal, complainant notes that with regard to the dismissal of issues
(1), (2), and (3) for untimeliness, he had discussions on all points
of the EEO complaint with Person A, except the Spanish documentation
issue, in an effort to resolve the issues. Further, complainant states
that he became increasingly uncomfortable with the various events as
they were unfolding and claims that it was only a short time prior
to filing the complaint that he became convinced that the series of
events reflected hostility and harassment. With regard to issue (4),
complainant states that he was denied 72 hours of leave in October 2001,
but was not paid until March of 2002. Further, complainant notes that
others have submitted medical documentation in Spanish which was accepted.
With regard to issue (5), complainant states that he is not the only
responsible party with regard to delivery confirmations, but he was the
only one held responsible. With regard to the official discussion for
talking, complainant states that the allegations lodged against him were
vague and not substantiated.
Upon review, we find that the agency properly dismissed issues (1) and
(2) for untimely counselor contact. The record reveals that with regard
to issue (1), the alleged discriminatory incident occurred at the latest
on September 6, 2001. The record reveals with regard to issue (2),
the alleged discriminatory incident occurred at the latest on September
13, 2001. According to the EEO Counselor's report, however, complainant
failed to initiate EEO Counselor contact with regard to issues (1) and
(2) until October 31, 2001, which was beyond the applicable limitations
period. On appeal, complainant has presented no persuasive arguments
or evidence warranting an extension of the time limit for initiating
EEO Counselor contact.
In addition, we find that the agency properly dismissed issues (3), (4),
and (5). With regard to issue (3), we find that the agency properly
dismissed this issue for failure to state a claim. Specifically, we
find that complainant has failed to identify a harm or loss to a term,
condition, or privilege of employment for which there is a remedy.
With regard to issue (4), we find that the agency improperly dismissed
this issue on the grounds that it was moot. We find that issue (4) is not
rendered moot because a fair reading of complainant's complaint reflects
that complainant has requested compensatory damages. The Commission has
held that an agency must address the issue of compensatory damages when
the complainant presented objective evidence that he incurred compensatory
damages and that the damages were related to the alleged discrimination.
See Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992);
req. to recons. denied, EEOC Request No. 05930386 (February 11, 1993).
Consequently, where, as here, a complainant requests compensatory damages
during the processing of his 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 his claim, the possibility of
an award of compensatory damages exists, and complainant's claim is not
moot. See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993).
With regard to issue (5), we find that the agency properly dismissed
this issue for failure to state a claim. In his complainant, complainant
alleges that on November 28, 2001, he was given two official discussions.
The Commission has held that an official discussion does not render the
complainant aggrieved within the meaning of EEOC regulations when it is
not recorded or used as the basis of further disciplinary action. See
Quinones v. Department of Defense, EEOC Request No. 05920051 (March 12,
1992). We note that there is no evidence in the record that complainant
sustained any personal loss or harm with respect to a term, condition,
or privilege of employment as a result of the alleged incidents.
The Commission finds that the incidents identified in complainant's
complaint in totality (even including issue (4)) are not sufficiently
severe or pervasive to constitute a claim of harassment.
Accordingly, the agency's decision to dismiss issues (1), (2), (3), and
(5) is AFFIRMED. The agency's decision to dismiss issue (4) is REVERSED
and issue (4) is REMANDED for further processing 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 (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
June 10, 2003
__________________
Date