01a45057
11-23-2004
Kathleen S. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathleen S. Davis v. United States Postal Service
01A45057
November 23, 2004
.
Kathleen S. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45057
Agency No. 4G-730-0033-04
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) and (a)(5).
On February 20, 2004, complainant filed a formal complaint, alleging
that she was the victim of unlawful employment discrimination on the
bases of sex, disability and age.
On June 16, 2004, the agency issued a final decision that is the subject
of the instant appeal. Therein, the agency identified complainant's
complaint as alleging that complainant was discriminated against and
harassed by her supervisor on the bases of sex<1> when:
On December 3, 2003, she was informed that her workload would be monitored
because of prior time wasting practices; and
On December 26, 2003, she was issued a Letter of Warning [LOW] for
unsatisfactory effort in performing her duties on December 3, 2003,
and failure to adhere to medical restrictions.
The agency dismissed the instant complaint for failure to state a claim.
The agency found that complainant was not aggrieved as a result of the
alleged incidents of discrimination. In particular, the agency determined
that the LOW was a moot issue because it had been rescinded and removed
from complainant's file through the grievance process.
The record indicates that in her EEO Counselor Report and formal
complaint, complainant claimed that she had been harassed by her
supervisor on an ongoing basis. Complainant has not, however,
identified any specific incidents of harassment. However, on May 19,
2004, in response to agency inquiries concerning claimed harassment,
complainant sent a letter to the agency stating she had attempted to
gather information but had been �paralyzed� by stress and frustration.
Along with the letter, complainant attached information concerning a
grievance determination involving alleged actions by complainant occurring
on December 3, 2003, which led to the December 26, 2003 Letter of Warning
from her supervisor. The information indicated that the grievance had
been filed on January 22, 2004, and decided on March 30, 2004, with the
LOW to be rescinded and removed from complainant's file. Complainant
additionally annotated the letter and information by stating that the
grievance information was �yet another example of harassment� and that
�this is only the beginning, much more documentation forthcoming.� We
note that we find no evidence of further incidents of harassment in
the record.
As an initial matter, the Commission finds that the agency should
not have categorized the instant complaint as being comprised of two
distinct claims. The matter identified in the agency's �claim (1)� is
not a separate claim independent of the issuance of the December 26,
2003 LOW, as identified in the agency's �claim (2).� The Commission
instead determines that the issuance of the December 26, 2003 LOW is
the sole incident claimed by complainant. Furthermore, we determine
that by being issued the December 26, 2003 LOW, complainant suffered a
personal loss or harm with respect to a term, condition, or privilege
of her employment. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Consequently, we find that complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
The Commission notes that the instant complaint was not technically
dismissed on mootness grounds. However, we shall construe the agency's
statements in its June 16, 2004 decision as dismissing complainant's
complaint on the alternative grounds of mootness. 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.
With regard to mootness, we find that although the record indicates that
the March 30, 2004 grievance decision was to rescind and remove the LOW
from complainant's record, the agency has failed to provide evidence that
the LOW has actually been rescinded and removed from complainant's file
as a result of the grievance decision. We therefore find that the agency
has failed in its burden to provide evidence to support its dismissal,
and that the complaint was improperly dismissed pursuant to 29 C.F.R. �
1614.107(a)(5). See Ericson v. Department of the Army, EEOC Request
No. 05920623 (January 14, 1993; see also Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992).
Accordingly, the agency's decision is hereby REVERSED. The complaint,
as defined herein, is REMANDED to the agency for further processing in
accordance with this decision and 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
November 23, 2004
__________________
Date
1As noted above, complainant's formal complaint
also alleged discrimination on the bases of disability and age, which the
agency did not explicitly dismiss. The agency is reminded that it must
clearly and explicitly dismiss bases, and offer appeal rights regarding
them, in order to have such matters stated in a complaint dismissed.
See Jozlin v. Department of Veterans Affairs, EEOC Appeal No. 01920040
(February 12, 1992).