Michelle G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionJun 6, 20190120180098 (E.E.O.C. Jun. 6, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michelle G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120180098 Hearing No. 480-2017-00382X Agency No. 4F-913-0126-16 DECISION On October 2, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 6, 2017,2 final decision concerning her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED Whether Complainant’s claim that she was discriminated against based on her national origin when she was allegedly informed that she could not speak Spanish on the workroom floor should be dismissed as moot. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 While we note that Complainant’s October 2, 2017, appeal was premature, the Commission finds that the appeal is now ripe for adjudication as the Agency subsequently issued a final decision on October 6, 2017. 0120180098 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Pacoima Post Office in Pacoima, California. On September 8, 2016, Complainant stated that when she heard from the clerks that Spanish could not be spoken on the workroom floor and only in the break room, she approached the Clerk Supervisor (CS) (Black American) to ask if this applied to everyone, or only the clerks. Complainant stated that CS responded that it applied to everyone, and that if Complainant wanted to speak Spanish, she should “go back to [her] country.” Complainant stated that the Postmaster (PM) (Hispanic) agreed with CS. Report of Investigation (ROI) at pgs. 61-62. On September 19, 2016, PM led a standup meeting with the clerks to state that there was no “English speaking policy,” but that they should respect their coworkers. On September 20, 2016, PM led another standup meeting with the carriers to convey the same message. ROI at pg. 91. Complainant filed a grievance, and on October 20, 2016, the parties entered into a settlement agreement to resolve the matter. The parties agreed that there would be no “English Only” rule, and that employees may converse in a language other than English during breaks, lunches, or in conversations of a personal nature. ROI at pg. 71. EEO Complaint On October 11, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of national origin (Hispanic/Puerto Rico) when on September 8, 2016, CS informed her that she could not speak Spanish on the workroom floor. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew her request on July 21, 2017. On September 1, 2017, the AJ issued an order dismissing Complainant’s hearing request and remanded the complaint to the Agency to issue a final decision pursuant to 29 C.F.R. § 1614.110(b). On October 2, 2017, Complainant filed an appeal with the Commission arguing that the Agency should be sanctioned for its failure to issue the final decision. The Agency subsequently issued the final decision on October 6, 2017. As an initial matter, Agency found that Complainant’s claim was moot based on the grievance settlement. However, the Agency discussed the merits of Complainant’s complaint, in the event that a dismissal was not affirmed by the Commission, concluding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 0120180098 3 ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Moot Claims 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); and 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. The record indicates that Complainant filed a grievance regarding the same alleged claim. Subsequently, on October 20, 2016, the matter was resolved through a grievance settlement agreement. We find that the record supports finding that both prongs of the County of Los Angeles v. Davis test have been met. Moreover, there is no evidence that Complainant presented a claim for compensatory damages for the alleged discrimination. Therefore, we AFFIRM the Agency’s dismissal of Complainant’s complaint as moot. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant’s complaint is moot. 0120180098 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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. 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. 0120180098 5 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 6, 2019 Date Copy with citationCopy as parenthetical citation