01980240
11-20-1998
Iris I. Cancel, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Iris I. Cancel v. United States Postal Service
01980240
November 20, 1998
Iris I. Cancel, )
Appellant, )
)
v. ) Appeal No. 01980240
) Agency No. 1-A-101-0061-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's September 10, 1997 decision
dismissing appellant's complaint on the bases of failure to state a
claim and mootness is proper, in part, pursuant to the provisions of 29
C.F.R. �1614.107(a) and (e).
The record shows that appellant alleged that she had been discriminated
against on the basis of reprisal for prior EEO activity when: (1) on
July 15, 1997, her supervisor yelled at her in front of her coworkers;
(2) the letter of warning dated January 13, 1997, was not rescinded; and,
(3) the Step 1 grievance meeting relative to her removal from sick leave
restriction resulted in denial of her grievance. In its final decision,
the agency dismissed allegation (1) on the grounds of failure to state a
claim after finding that appellant had failed to show that she had been
aggrieved by the supervisor's action. The agency dismissed allegations
(2) and (3) on the grounds of mootness. Concerning allegation (2) the
agency found that a Step 2 decision issued on May 30, 1997, rescinded
and expunged from the records the January 13, 1997 letter of warning.
It also found that pursuant to a Step 2 decision issued on August 27,
1997, appellant was removed from sick leave restriction.
The record shows that appellant claims that the harassment she
has suffered as a result of her supervisor's actions is continuous.
Appellant has also alleged that her supervisor's abuse has caused her
"great distress, depression, anxiety, weight loss, insomnia and self
mutilation of [her] fingers".
An agency shall accept a complaint from any aggrieved employee or
applicant 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; �1614.106(a). The Commission
has held that while the regulations do not define the term "aggrieved
employee," the United States Supreme Court has interpreted it to mean
an employee 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 (Apr. 21, 1994).
"To state a claim under our regulations, an employee must allege and show
an injury in fact." Id. (citing Hackett v. McGuire Bros., 445 F.2d 447
(3d Cir. 1971)). "Specifically, an employee must allege and show a
`direct, personal deprivation at the hands of the employer,' that is,
a present and unresolved harm or loss affecting a term, condition or
privilege of his/her employment." Id. (citing Hammonds v. United States
Postal Serv., EEOC Request No. 05900863 (Oct. 31, 1990); Taylor v. United
States Postal Serv., EEOC Request No. 05900367 (June 2, 1990)).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall
dismiss a complaint that fails to state a claim under �1614.103.
In this case, appellant alleged that she was yelled at for not asking
for a step off and that the harassment against her is continuous.
A review of allegation (1) persuades the Commission that the dismissal
was proper because this allegation is not sufficient to state a claim
either of disparate treatment or a hostile or abusive work environment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). Accordingly, allegation (1) was properly dismissed.
EEOC Regulation 29 C.F.R. �1614.107(e) provides in relevant part that
an agency shall dismiss a complaint or portion of a complaint that is
moot. The United States Supreme Court has held that a discrimination
complaint is moot when: (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 violation. County of Los Angeles v. Davis, 440
U.S. 625, 631 (1979). Under such circumstances, no relief is available
and thus there is no need for a determination of the rights of the
parties. Id. Concerning allegation (2), the record shows that appellant
has requested compensation for her mental anguish. Accordingly, appellant
has requested compensatory damages in her complaint. The Commission
has held that where a timely claim for compensatory damages is made,
the agency cannot dismiss the complaint for mootness, as it did in this
case, unless it can show that complainant is not entitled to damages.
Ellicker v. U.S. Department of Agriculture, EEOC Request No. 05931079
(September 22, 1994). The agency has not shown that appellant is not
entitled to damages because the agency did not request from appellant
objective evidence of the harm suffered and the causation between the
damages and the alleged violation. The agency should have investigated
allegation (2) and not dismissed it. Accordingly, the dismissal of
allegation (2) was not proper.
Concerning allegation (3), the record shows that appellant claims that
the Step 1 grievance meeting regarding her removal from sick leave
restriction resulted in denial of her grievance. The agency dismissed
this allegation on the grounds of mootness. A review of the record
persuades the Commission that the basis for this allegation is appellant's
dissatisfaction with the result of her grievance. The Commission affirms
the dismissal of allegation (3) on the grounds that this allegation
constitutes an impermissible attack in the EEO process on the agency's
processing of appellant's grievance. See Fisher v. Department of Defense,
EEOC Request No. 05931066 (July 15, 1994).
Accordingly, we AFFIRM the dismissal of allegations (1) and (3) on
the basis of failure to state a claim. The dismissal of allegation
(2) is REVERSED. Allegation (2) is REMANDED for further processing in
accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
November 20, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations