Gail Cogen, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 31, 2004
01A34530_r (E.E.O.C. Mar. 31, 2004)

01A34530_r

03-31-2004

Gail Cogen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Gail Cogen v. United States Postal Service

01A34530

3/31/2004

.

Gail Cogen,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A34530

Agency No. 1A-078-0006-02

DECISION

Complainant initiated EEO Counselor contact on December 24, 2001.

Informal efforts to resolve her concerns were unsuccessful. In her

formal complaint dated September 22, 2002, complainant alleged that she

was subjected to discrimination on the bases of race, sex, age, and in

reprisal for prior EEO activity.

On April 21, 2003, the agency issued an initial decision dismissing

complainant's complaint.

Subsequently, on April 22, 2003, the agency issued a Partial

Acceptance/Dismissal of complainant's complaint and vacated its April

21, 2003 decision. In its April 22, 2003 Partial Acceptance/Dismissal,

the agency determined that the instant complaint was comprised of the

following three claims:

1) On December 21, 2001 [complainant was] issued a seven-day suspension;

2) [Complainant's] wages were deducted on December 15, 18, and 19,

2001; and

3) On [an unspecified date] the Human Resources Specialist sabotaged

[complainant's] medical records, violated [complainant's]

rights under the Privacy Act and denied [complainant]

changes of schedules which prevented [complainant] from pursuing [her]

education.

The agency accepted claims (1) and (2) for investigation. However, the

agency dismissed claim (3) for failure to state a claim, pursuant to 29

C.F.R. � 1614.107(a)(1). The agency cited 29 C.F.R. � 1614.105(a)(1),

providing that an aggrieved person must contact an EEO Counselor within

forty-five days of the alleged discriminatory incident; and 29 C.F.R. �

1614.106(c), providing that a complaint must be �sufficiently precise�

and describe generally the action that forms the basis of the complaint.

In addition, the agency stated that complainant failed to articulate

how she suffered a harm or loss with respect to a term, condition,

or privilege of employment.

On June 24, 2003, the agency issued the instant final decision.

Therein, the agency dismissed claims (1) and (2) as moot, pursuant to

29 C.F.R. � 1614.107(a)(5). The agency stated that in regard to claim

(1), complainant did not serve the suspension and the suspension letter

was removed from complainant's record. In regard to claim (2), the

agency stated that a payroll adjustment was made paying complainant the

hours deducted on the dates in question.

On appeal, complainant states that her complaint was improperly dismissed.

Regarding claim (1), complainant states that the suspension remains in

her record and that it prohibited her from applying for the Management

Masters Program for upward mobility. Regarding claim (2), complainant

states that she has not been paid.

In response, the agency reiterates its assertion in its final decision

that claims (1) and (2) are moot.

Claims (1) and (2)

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.

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.

The Commission finds that the agency improperly dismissed claims (1) and

(2). Regarding claim (1), the record contains a copy of a memorandum

from complainant's supervisor to an employee in personnel dated May 23,

2003, stating that the �[s]uspension issued to [complainant] ...shall

be rescinded from her file.� In addition, the record contains a copy of

an affidavit from complainant's supervisor dated May 15, 2003, stating

that the suspension �will be expunged from the record.� However, the

record does not contain any conclusive evidence that the suspension

dated December 21, 2001 was expunged from complainant's file.

Regarding claim (2), the record contains a copy of a memorandum from

complainant's supervisor dated May 23, 2003 to a TACS Clerks. Therein,

complainant's supervisor stated that complainant shall be paid one hour

of administrative leave. In addition, the record contains a Pay, Leave,

or Other Hours Adjustment Request Form providing for complainant to be

paid one hour of administrative leave. However, the record does not

contain any conclusive evidence that this request was processed and that

complainant was paid the time in question.

Moreover, the Commission has held that an agency must address the issue

of compensatory damages when a complainant shows objective evidence that

she has incurred compensatory damages, and that the damages are related

to the alleged discrimination. Jackson v. United States Postal Service,

EEOC Appeal No. 01923399 (November 12, 1992), req. for recons. den.,

EEOC Request No. 05930306 (February 1, 1993). Should complainant

prevail on this complaint, the possibility of an award of compensatory

damages exists. See Glover v. United States Postal Service, EEOC Appeal

No. 01930696 (December 9, 1993).

In the present case, complainant in her formal complaint requests �[t]o

[b]e [m]ade [w]hole�, which the Commission interprets as a request for

compensatory damages. 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 actions 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). A review of the record reflects that agency did not address

the issue of compensatory damages. For the reasons stated herein, the

Commission determines that the agency improperly dismissed claims (1)

and (2).

Claim (3)

A determination not to accept certain claims is not appealable until

final action is taken on the remainder of the complaint. See 29 C.F.R. �

1614.107(b). Therefore, because the agency issued a final decision on

the accepted issues in the complaint, claims (1) and (2), on June 24,

2003, we determine that the agency's dismissal of claim (3) is properly

before the Commission on appeal.

Regarding the portion of claim (3) claiming that complainant's rights

under the Privacy Act were violated, such a claim is outside the purview

of the Commission. See Bucci v. Department of Education, EEOC Request

Nos. 05890289, 05890290, and 05890291 (April 12, 1989).

However, in regard to the remainder of the claim(complainant alleging

that the Human Resources Specialist denied changes to her schedule),

we determine that the agency improperly dismissed this portion of claim

(3). The agency referred to EEOC regulation 29 C.F.R. � 1614.106(c),

in support of its dismissal; however, a complainant is only required

by 1614.106(c) �to describe generally the action(s) or practice(s)

that form the basis of the complaint.� While complainant does not

refer to the specific date of the alleged incident, complainant does

identify the person allegedly responsible for the discriminatory action

and generally describes the action which formed the basis of her claim.

Moreover, while the agency, in support of its dismissal for claim (3),

also cites 29 C.F.R. � 1614.105(a)(1), providing for aggrieved persons

to contact an EEO Counselor within forty-five days, the agency has not

met its burden to prove that complainant contacted an EEO Counselor

beyond the limitation period.

Accordingly the agency's decision dismissing the portion of claim (3)

pertaining to complainant's rights under the Privacy Act is AFFIRMED.

However, the agency's decision dismissing claims (1), (2), and the portion

of claim (3) pertaining to complainant being denied a schedule change

are REVERSED and these claims are REMANDED to the agency for further

processing an 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

3/31/2004

Date