01993143
03-17-2000
Ann L. Cullerton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ann L. Cullerton, )
Complainant, )
)
v. ) Appeal No. 01993143
) Agency No. 1-B-016-0018-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
We find that the agency's March 9, 1999 decision dismissing the complaint
on the grounds of mootness is not proper, in part, pursuant to the
provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(5)).<1>
The record shows that Complainant sought EEO counseling on August 7,
1998, claiming that she had been discriminated against on the bases of
sex, and physical disability when: (1) on July 3, 1998, she was told
she would have to use the employee's entrance to the building; and, (2)
her request for a revised schedule was denied in such a manner that it
caused her humiliation and stress.
Subsequently, Complainant filed a formal complaint of discrimination.
The only issue raised in her formal complaint was the one concerning her
use of the employee entrance (hereinafter referred to as �claim (1).�
However, in her formal complaint Complainant did not raise the agency's
denial of her request for a revised schedule (hereinafter referred to
as �claim (2).�
By letter dated November 2, 1998, Complainant was advised that her
complaint had been accepted for investigation. Complainant was further
advised that the scope of the investigation would only include the claim
(1), that is, whether she was discriminated against on the bases of sex
and disability when on July 3, 1998, she was advised that she could no
longer use the Administrative parking lot, and that she would have to
use the employee entrance. Complainant was also advised that if she
disagreed with the defined issue she would have to object, in writing,
within 15 calendar days of her receipt of the letter. The record shows
that Complainant received the agency's acceptance letter on November 5,
1998.
On December 8, 1998, well beyond the 15-day time limit provided
to Complainant in the agency's November 2, 1998 acceptance letter,
Complainant issued an EEO investigative affidavit and once again raised
the issue concerning the denial of her request for a revised schedule
(claim (2)).
The agency issued a final decision dismissing claim (1) on the grounds
of mootness. The agency found that this issue had been resolved.
The agency also found that Complainant had abandoned claim (2) when
she failed to raise it in her formal complaint and when she failed to
object to the agency's acceptance letter.
On appeal, Complainant acknowledges that although her access to the
building was resolved, she was still dealing with the harm caused by
said incident because she was still �in need of additional [medical]
treatment�. Complainant also argues that as a aresult of the agency's
action, she has suffered physical harm, that her work hours were reduced,
and that she was out of work for two and one-half weeks.
In response to Complainant's appeal, the agency argues that Complainant's
contentions on appeal refer exclusively to claim (2) and not to claim
(1).
EEOC Regulations provide in relevant part that an agency shall dismiss
a complaint or portion of a complaint that is moot. The United States
Supreme Court has held that a discrimination complaint is moot when:
(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
violation. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).
Under such circumstances, no relief is available and thus there is no
need for a determination of the rights of the parties. Id.
Regarding claim (1), a review of the record does not support the agency's
claim that on appeal Complainant is only raising the harm she suffered
as a result of the denial of her revised schedule request. Contrary to
the agency's contentions, we find that the record shows that Complainant
claims that she suffered harm as a result of the employee entrance issue.
We further find that she claims that at the time she filed her complaint
and her appeal, she was still suffering harm as a result of the agency's
action. Therefore, the agency has failed to show that interim relief
has completely and irrevocably eradicated the effects of the alleged
violation. Moreover, the agency has been unable to show that there
is no reasonable expectation that the alleged violation will recur.
Accordingly, the agency erred by dismissing claim (1) on the basis
of mootness.
Concerning claim (2) we find that the agency properly determined that
Complainant abandoned this issue. The record reflects the following
chronology regarding claim (2): Complainant initially brought the matter
to the attention of an EEO Counselor; and thereafter did not include
this matter in her formal complaint. The agency subsequently defined
the complaint as solely comprised of the matter addressed in claim (1),
and provided fifteen days for Complainant to dispute the manner in which
the complaint was identified; and Complainant did not respond within
fifteen days to this request, but only thereafter asserted that claim
(2) was part of her formal complaint. Having considered the facts
of this situation, we find that the agency's framing of the matters
raised in Complainant's complaint (as comprised exclusively of the matter
addressed in claim (1)) was proper. For these reasons, we find that the
agency did not act improperly in broadening the scope of Complainant's
complaint to include claim (2).
In summary, the dismissal of claim (1) was improper and is hereby
REVERSED. Claim (1) is REMANDED for further processing in accordance
with this decision and applicable regulations. The dismissal of claim
(2) was proper and is hereby AFFIRMED.
ORDER (E1199)
The agency is ORDERED to process the remanded claim in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claim 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (T1199)
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:
March 17, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________ _________________________________
1 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. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.