01a60282
03-29-2006
Glenda M. Gonzalez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Glenda M. Gonzalez v. United States Postal Service
01A60282
March 29, 2006
.
Glenda M. Gonzalez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60282
Agency No. 4F-926-0231-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 23, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of sex (female), age (D.O.B. June 17, 1958),
and reprisal for prior EEO activity when:
On June 2, 2005, she was issued a Letter of Warning (LOW) for failure
to follow instructions; and
On June 5, 2005, she was accused of deliberately breaking a customer's
mailbox.
The agency dismissed both claims pursuant to 29 C.F.R. � 1617.107(a)(1)
for failure to state a claim. As for claim 1, the agency indicated that
the LOW was reduced to an official discussion pursuant to complainant's
grievance. As such, the agency found that the official discussion
should be dismissed for complainant did not show any harm or loss as
to her terms and conditions of employment. As to claim 2, the agency
indicated that complainant was not subjected to any disciplinary action
or other adverse affect on a term, condition, or privilege of employment
as a result of the accusation. As a result, the agency determined that
claim 2 also failed to state a claim.
Complainant appealed asserting that the two events did cause complainant
emotional distress. She also noted that she received no notification that
the LOW had been removed from her personnel file. As such, complainant
requests that the Commission reverse the agency's dismissal of her
complaint.
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. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent 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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Upon review, we find that complainant failed to state a claim as to
claim 2. Specifically, complainant has not shown how an accusation alone
presented a harm or loss to a term, condition or privilege of employment.
Therefore, we affirm the dismissal of claim 2.
As to claim 1, the Commission finds that the dismissal is more properly
analyzed as to whether it has been rendered moot by the grievance which
reduced the LOW to an official discussion. 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 claim 1 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 LOW
was removed from all of complainant's official records and complainant
received back pay for any wages lost. Further, complainant 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). Therefore,
we find that the dismissal of claim 1 was inappropriate.
CONCLUSION
Accordingly, the Commission affirms the agency's final decision's
dismissal of claim 2 and reverses the dismissal of claim 1. We remand
claim 1 for further processing as ordered below.
ORDER (E0900)
The agency is ordered to process claim 1 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
March 29, 2006
__________________
Date