01a45014
09-29-2005
Linda J. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda J. Davis v. United States Postal Service
01A45014
September 29, 2005
.
Linda J. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45014
Agency No. 4G-760-0235-02
Hearing No. 310-2003-05214X
DECISION
Complainant appeals to the Commission from the agency's June 18, 2004
notice of final action dismissing complainant's complaint for being moot
pursuant to 29 C.F.R. � 1614.107(a)(5). Complainant alleges discrimination
on the bases of sex and reprisal when: (1) on April 25, 2002, she
became aware that her pre-scheduled sick leave taken from February 21,
2002 through March 7, 2002 was charged as unscheduled sick leave; (2)
on August 7, 2002, she was given a scheme pre-test that was not within
guidelines; and (3) on August 20, 2002, she was issued a Notice of a
7-Day Suspension for Unsatisfactory Work Performance.<1> On April 15,
2004, an EEOC Administrative Judge (AJ) issued a decision dismissing
complainant's complaint for being moot. Specifically, the AJ noted
that the agency filed a motion to dismiss complainant's complaint on the
grounds that it was moot and complainant failed to respond to the motion.
Thus, the AJ found that since the facts in the motion to dismiss �were
not contested they are accepted as accurate� and the complaint should
be dismissed. Additionally, the AJ denied complainant's request that
some of the original claims dismissed by the agency on October 10, 2002,
be reinstated.
The agency, by decision dated June 18, 2004, adopted the AJ's decision
to dismiss complainant's complaint as moot. Complainant now appeals the
agency's June 18, 2004 decision. We note that on appeal, complainant
does not challenge the AJ's decision to deny reinstatement of the issues
originally dismissed by the agency on October 10, 2002.
The agency, by motion dated March 5, 2004, requested that complainant's
complaint be dismissed as moot. The motion argues that all of
complainant's claims were resolved through a grievance or other informal
agreements. The AJ reasoned that since complainant did not respond,
the facts were accurate, and the case should be dismissed. We find
the complaint is not moot because, at a minimum, complainant requested
compensatory damages which the agency failed to address.
The agency's decision dismissing complainant's complaint is REVERSED and
we REMAND the matter to the agency for further processing in accordance
with this decision and Order herein.
ORDER
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall request that the EEOC's Dallas District Office schedule
a hearing. The agency is directed to also submit a copy of the complaint
file to the Hearing Unit of the Dallas District Office within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the request and complaint file have been
transmitted to the Hearings Unit. Thereafter, the Administrative Judge
shall issue a decision on the complaint in accordance with 29 C.F.R. �
1614.109 et seq., and the agency shall issue a final action in accordance
with 29 C.F.R. � 1614.110.
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
September 29, 2005
__________________
Date
1We note that complainant originally
filed two formal EEO complaints under Agency Nos. 4G-760-0235-02 and
4G-760-0285-02 which were consolidated by the agency for processing under
Agency No. 4G-760-0235-02. On October 10, 2002, the agency dismissed
a portion of the issues raised by complainant for failure to state a
claim and accepted the subject issues for processing.