Glenda M. Gonzalez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 29, 2006
01a60282 (E.E.O.C. Mar. 29, 2006)

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