Siusavaii P. Ulimasao, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 29, 2004
01A40875_r (E.E.O.C. Apr. 29, 2004)

01A40875_r

04-29-2004

Siusavaii P. Ulimasao, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Siusavaii P. Ulimasao v. United States Postal Service

01A40875

April 29, 2004

.

Siusavaii P. Ulimasao,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A40875

Agency No. 4E-800-0596-03

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated October 21, 2003, dismissing her complaint of unlawful

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. In her

complaint, complainant alleged that she was subjected to discrimination

on the bases sex (female), and reprisal for prior EEO activity when:

On May 23, 2003, complainant discovered two disciplinary actions in her

Official Personnel File (OPF).

The agency dismissed complainant's complaint pursuant to 29 C.F.R. �

1614.107(a)(1), on the grounds that the disciplinary actions (two notices

of suspension of 14 days or less, dated July 1, 2002 and July 15, 2002,

respectively) were unsigned and never issued to complainant. The agency

further found that both notices were removed from complainant's OPF

and given to her. Accordingly, the agency found that complainant was

not aggrieved.

On appeal, complainant states that the conduct to which the

two disciplinary actions pertains was addressed during the REDRESS

mediation process in connection with two prior complaints that resulted

in two settlement agreements dated November 25, 2002 and April 18, 2003.

Complainant states that the agency has breached the settlement agreements

and requests that all three of her complaints be reinstated for further

processing. Complainant argues that the agency has never properly

investigated her breach allegations and has made no determination

regarding them.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment 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,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one 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 (April 21, 1994).

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 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.

We find the instant complaint is moot. The agency states (without

rebuttal) that the two disciplinary actions were never issued to

complainant and that they have, upon discovery by complainant, been

removed from complainant's OPF. We observe that complainant has not

requested compensatory damages and that the agency official responsible

for the disciplinary actions is no longer in complainant's chain of

command. Accordingly, we find interim events have completely eradicated

the effects of the alleged discrimination and there is no opportunity

for them to recur. We find the complaint is properly dismissed pursuant

to 29 C.F.R. � 1614.107(a)(5).

EEOC Regulation 29 C.F.R. � 1614.504 provides that if a complainant

believes that the agency has failed to comply with the terms of a

settlement agreement, he may request that the terms of the agreement

be specifically implemented, or, alternatively, that the complaint be

reinstated for further processing. On appeal, complainant claims that

the agency has breached the settlement agreements between the parties.

The agency has not had an opportunity to address these claims. Therefore,

we shall remand the breach claim so that the agency may address the

matter pursuant to 29 C.F.R. � 1614.504.

The agency's decision dismissing complainant's EEO complaint is AFFIRMED.

Complainant's breach claims are REMANDED to the agency for further

processing pursuant to the Order herein.

ORDER

Within 30 days of the date this decision becomes final, the agency

shall issue a decision as to whether it breached the November 25, 2002

and April 18, 2003 settlement agreements as claimed by complainant.

The agency shall send a copy of the decision to the Compliance Officer

as referenced herein.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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.

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

April 29, 2004

__________________

Date