01A22712_r
01-10-2003
Phyllis E. Cofer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Phyllis E. Cofer v. United States Postal Service
01A22712
January 10, 2003
.
Phyllis E. Cofer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22712
Agency No. 1-J-461-0078-97
Hearing No. 240-99-5081X
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated March 19, 2002, dismissing her complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In her complaint, complainant alleged that she was the victim of
discriminatory harassment on the bases of race (African-American), sex
(female), and in reprisal for prior EEO activity as evidenced by the
following incidents:
On June 23, 1997, complainant's first line supervisor issued her a
seven-day suspension (unauthorized clocking off and leaving assigned
work area), effective August 1, 1997 through August 8, 1997;
On August 1, 1997, complainant's first line supervisor issued her a
fourteen-day suspension (failure to follow instructions/discourtesy and
disrespect to a supervisor), effective September 12, 1997 to September
26, 1997;
On August 7, 1997, complainant's first line supervisor humiliated her
by having her escorted from the plant because she returned to work one
day early from her seven-day suspension; and
In September 1997, complainant's supervisor mandated that she
seek Employee Assistance Program counseling and that she undergo a
fitness-for-duty psychiatric examination upon the false charge that
she was mentally unstable and had violent tendencies, thereby further
humiliating complainant and causing her stress and anxiety.
The agency accepted the complaint for investigation, and at complainant's
request, forwarded the case to an EEOC Administrative Judge (AJ) for
a hearing. In a decision dated March 6, 2002, the AJ indicated that
after conducting a series of pre-hearing conferences with the parties,
it was determined that the agency agreed to provide �full relief� to
complainant rendering the instant complaint moot.
Specifically, the AJ determined that the conferences revealed that the
agency already rescinded the fourteen-day suspension and that complainant
lost no wages due to this action. Regarding the seven-day suspension, the
AJ noted that two of these days were non-scheduled days for complainant,
such that she lost no wages, and that the remaining five days were
resolved through a grievance settlement. Moreover, the AJ indicated
that the agency, during the conference, agreed to pay complainant for
the remaining two days plus any overtime associated with the suspensions
as part of her full remedy. Additionally, in order to make complainant
whole, the AJ indicated that the agency also agreed to pay her attorney's
fees of $2,805.00, as well as $1,000.00 in compensatory damages for
emotional distress and medical expenses. Finally, the AJ noted that the
agency also offered to provide sensitivity training, or other appropriate
training, to the identified responsible management officials.
The AJ then determined that the complaint must be dismissed as moot,
noting that complainant twice failed to provide information relative
to compensatory damages, and that the two suspensions were resolved.
Further, the AJ determined that given the agency's assurances during
the pre-hearing conferences, the proposed sensitivity training, and the
reassignment of complainant's first and second level supervisors from
her immediate work area, it was unlikely that the alleged incidents
would be repeated.
Moreover, in specifically addressing compensatory damages, the AJ
indicated that although complainant was asked to submit proof of
medical and psychiatric expenses, she merely submitted three slips
verifying her visits to a named medical doctor (her family physician),
and provided no other documentation to demonstrate expenses associated
with the alleged discrimination. However, the AJ later acknowledged
that complainant submitted an itemized list of damages, but found that
it had no credible bearing to the issues before the Commission. The AJ
noted that the $1,000.00 award of compensatory damages was based solely
on emotional pain.
Based on the above findings, the AJ determined that complainant received
all the relief she would have received if she had prevailed in this
matter, and dismissed the complaint as moot. The agency's final order
implemented the AJ's decision. The instant appeal followed.
On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Under these revisions, the Commission eliminated the dismissal
grounds of failure to accept a certified offer of full relief from
the regulations. Therefore, agencies may no longer dismiss complaints
due to a complainant's failure to accept a certified offer of full
relief. Furthermore, in addressing the issue of non-compliance with a
Poirrier offer of full relief, the Commission held that this regulatory
change results in eliminating the elements of an offer of full relief
from "any acceptable analytical framework." See Tripicchio v. Department
of Justice, EEOC Appeal No. 01993307 (November 28, 2001); (request for
reconsideration denied, EEOC Request No. 05A20432 (May 17, 2002).
In the instant case, we find that the "Offer of Full Relief" brokered by
the AJ constitutes a Poirrier Offer of Full Relief pursuant to Poirrier
v. Department of Veterans Affairs, EEOC Appeal No. 01933308 (May 5,
1994). That is, we find that the record reflects that the agency's Offer
of Full Relief in this case contained all of the relief specified by
the AJ during the pre-hearing settlement conference. We further note
that Poirrier requires dismissal on the grounds of mootness.
Therefore, because the new regulations have, in effect, eliminated the
"offer of full relief," as a means of resolving EEO complaints, the issue
of compliance with the agency's �Poirrier offer� of full relief becomes
an issue of whether the captioned complaint was properly dismissed
on the grounds of mootness pursuant to 29 C.F.R. � 1614.107(a)(5).
See Miller v. Department of Treasury, EEOC Appeal No. 01993839 (February
14, 2002); Nicholson v. U.S. Postal Service, EEOC Appeal No. 01A22195
(July 24, 2002).
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).
Additionally, in assessing whether a complaint has been rendered
moot, the Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence that she
has incurred compensatory damages, and that the damages are related to
the alleged discrimination. See Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992), req. for recons. den.,
EEOC Request No. 05930306 (February 1, 1993).
Review of the record reflects that the agency's offer of full relief
consisted of the following pertinent provisions:
[The agency] will pay complainant a lump sum payment in the amount of
$1,386.00 for lost wages and overtime for the period June 23, 1997 to
September 15, 1997. ...
[The agency] shall pay complainant the sum of $1,000.00 for compensatory
damages. ...
[The agency] will pay complainant's attorney...the sum of $2,805.00. ...
The complainant will not be subject to retaliation for bringing this
action. [The agency] will continue to follow [its] policies regarding
non-discrimination.
The alleged responsible management officials identified in the above
referenced complaint will receive sensitivity training and/or other
training as appropriate.
Regarding claims 1 and 2, we find that it appears that both suspensions
were �resolved� or �rescinded;� however, there is no evidence
demonstrating that either of these disciplinary actions were, in fact,
expunged from complainant's official personnel file. In this regard,
we note that as part of her remedy, complainant requests that her record
be restored to normal. Moreover, the record fails to reflect a specific
break-out accounting to show that the sum offered in provision A above to
compensate complainant for lost wages and overtime includes the actual
amount, with or without interest, for the two uncompensated days which
the agency agreed to pay in conjunction with the first suspension.
For these reasons, we find that claims 1 and 2 are not moot.
Additionally, notwithstanding a perfunctory reference, we find that
neither the AJ nor the agency actually analyzed complainant's complaint
as a claim of harassment. Based on a fair reading of the record, we
find that complainant contends that her first line supervisor, without
any justification, issued the suspensions with the aim of harassing her.
Moreover, complainant contends that her first line supervisor had her
escorted from the plant without provocation for the sole purpose of
humiliating her; and then ordered her to see a counselor and undergo a
fitness-for-duty psychiatric examination, again for the sole purpose of
causing her anxiety and humiliation.
Although the record reflects no documentation detailing the fees incurred
by complainant for medical expenses associated with the stress caused by
these incidents (including the itemized list of expenses referenced by the
AJ), we find that the record clearly documents that complainant sought
the services of her family physician to treat work-related stress during
the pertinent time, notwithstanding the AJ's findings to the contrary.
Moreover, the report of psychiatric examination, dated September 15,
1997, reflects that complainant complained of anxiety and depression
related only to her work situation, noting that her physician prescribed
a psychotropic medication, and recommended to the agency that she be
removed from the supervision of the first line supervisor. The report
further reflects that complainant missed an unspecified number of days of
work due to the conflict with her first line supervisor. The examination
report concludes that complainant was fit for duty.
Further review of the record reveals that complainant submitted medical
verification that she missed seven days of work in August 1997, due to
work-related stress, and a prior physician statement, dated July 31,
1997, indicates the following:
If these [two] women are not separated nothing is going to improve.
She is unable to work with her boss. This causes acute anxiety.
Medication will not solve this problem.
Additional review of the record reflects that complainant reported to
the agency's medical clinic several times during June and July 1997,
due to on-the-job stress and stress related symptoms, and that she
applied for leave under the Family and Medical Leave Act in June 1997,
due to work induced anxiety.
Based on this evidence, we find that in determining that $1,000.00
constituted an appropriate �make whole� amount of compensatory damages,
the AJ failed to fully take into account the nature and severity of
complainant's �emotional pain� associated with the incidents identified
in her harassment claim. While we concur with the AJ that complainant is
not entitled to reimbursement for medical expenses she failed to document,
we find that she nonetheless provides ample verifying documentation to
support her statement of emotional suffering. Given that she required
rather frequent medical treatment by a variety of health care providers
for anxiety during the pertinent four-month period, and that her personal
physician confirmed her work-related anxiety, prescribed a psychotropic
medication (and complainant attests that she suffered side-effects,
to include sleepiness), and verified that she lost at least seven days
of work due to the severity of the work-related stress, we find that
$1,000.00 falls short as an award of compensatory damages in this case.
See Gates v. U.S. Postal Service, EEOC Appeal No. 01992894 (October
6, 2000).
Furthermore, we find that during the pre-hearing phase the agency,
point-by-point, disputed the complainant's itemized claim for $47,500.00
in lost wages, including lost overtime opportunities, claiming that this
amount should be far less. However, after careful review, we find no
record of an actual accounting demonstrating that the amount in provision
A is adequate compensation for these loses. As such, we cannot conclude
that this sum constitutes full relief to complainant.
Moreover, although it is not of record before us on appeal, we find that
the itemized list of expenses referenced by the AJ could possibly be
used to assess the expenses complainant reasonably incurred in light of
the medical documentation she submitted confirming treatment. In this
regard we note that the AJ failed to provide any analysis to support
his finding that complainant's list of itemized expenses had no nexus
to the incidents comprising her complaint, and that it was essentially
worthless as evidence of compensatory damages.
Therefore, for the reasons stated above, specifically that there is no
evidence that the suspensions were expunged from complainant's official
personnel record, the failure of the AJ and agency to fully access
the emotional harm suffered by complainant, the lack of evidence to
show that the amount offered to compensate complainant for lost wages
was adequate, and the lack of a explanation to justify discounting
complainant's evidence of expenses, we find that complainant's harassment
claim may not be dismissed as moot. In this regard, we note that it is
well established that the agency bears the burden of providing adequate
evidence to substantiate its final decision. See Marshall v. Department
of the Navy, EEOC Request No. 05910685 (September 6, 1991).
In conclusion, we REVERSE the agency's final action dismissing the
instant complaint as moot, and we REMAND the case to the agency to
forward the complaint to the EEOC's Indianapolis District Office to
schedule a hearing.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Indianapolis
District Office a request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit 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.
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
January 10, 2003
__________________
Date