01981832_r
03-22-1999
Gloria Meyer, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gloria Meyer, )
Appellant, )
)
v. ) Appeal No. 01981832
) Agency No. HI-0153-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �501 et seq. The final agency decision was
issued on November 24, 1997. The appeal was postmarked December 27, 1997.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of failure to state a claim and mootness.
BACKGROUND
Appellant initiated contact with an EEO Counselor on April 18, 1997.
On July 25, 1997, appellant filed a formal EEO complaint wherein she
alleged that she was discriminated against on the bases of her mental
disability (stress) and in reprisal for her previous EEO activity when
she was unable to file a 1996 income tax return because the agency failed
to provide her with a corrected W-2 form. The complaint was accepted
and an investigation was conducted.
The record reveals that appellant was provided with a W-2 form that
reflected she had over $9,000.00 in earnings for the 1996 taxable year.
However, appellant was in a leave without pay status for the entire year,
and her W-2 should have reported zero earnings. Appellant stated in
her affidavit that she had to request two filing extensions from the
IRS due to the agency's delays in sending her a corrected W-2 form.
According to appellant, although she was provided with the corrected
W-2 form before the October 15, 1997 extended deadline, the situation
was not fully corrected until November 1, 1997.
In its final decision, the agency dismissed appellant's complaint on the
grounds of failure to state a claim and mootness. The agency determined
that appellant failed to demonstrate how the terms, conditions, or
privileges of her employment were changed as a result of the alleged
discrimination. The agency stated that appellant's claim that agency
officials intentionally caused income to be shown on appellant's W-2
form for 1996 is too speculative to be considered an intentional act.
Further, the agency determined that appellant failed to establish that
she had to pay any additional interest or penalty to the Internal Revenue
Service as a result of the alleged agency action. With regard to its
dismissal on the grounds of mootness, the agency noted that appellant
stated in her affidavit that the agency made the necessary corrections
and that she received another W-2 form reflecting zero earnings for 1996.
Therefore, the agency determined that the effects of the alleged violation
were eradicated.
On appeal, appellant argues that although the agency was aware of her
W-2 problem before April 15, 1997, it did not correct the situation
until November 1, 1997. Appellant maintains that the length of this
delay was beyond reason. Appellant states that she had to request two
filing extensions during this period and that she was under great stress.
According to appellant, she had to pay the IRS a penalty and interest
amounting to $319.30.
In response, the agency asserts that appellant was charged a penalty and
interest not because the agency sent her an erroneous W-2 form showing
she earned approximately $9,000.00 during 1996, but rather because she
failed to pay the taxes she owed on/or before April 15, 1997. The agency
maintains that appellant could have submitted a 1040 form showing that she
earned no income for 1996, with an explanation that the W-2 enclosed was
erroneous and that steps were being taken to obtain a corrected W-2 form.
Further, the agency asserts that the fact that it provided appellant an
erroneous W-2 form did not prevent appellant from figuring out what she
and her spouse still owed the government, and ensuring that they paid
that amount on/or before April 15, 1997.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
Appellant alleged that she was discriminated against when the agency
failed to provide her with a corrected W-2 form for the 1996 taxable year.
We find that the receipt of a correct W-2 form falls within the terms,
conditions, or privileges of employment. Therefore, the agency's failure
to provide appellant with an corrected W-2 form on/or before April 15,
1997, rendered appellant an aggrieved employee.
EEOC Regulation 29 C.F.R. �1614.107(e) further states that the agency
shall dismiss a complaint that is moot. In County of Los Angeles
v. Davis, 440 U.S. 625 (1979), the Supreme Court held that where the
only matter to be resolved is the underlying issue of discrimination,
a case can be closed if:
(1) it can be said with assurance that there is no reasonable
expectation that the violation will recur; and
(2) interim relief or events have completely eradicated the
effects of the alleged violation.
Upon review, we find that appellant's complaint is not moot. Although the
record indicates that appellant was provided with a corrected W-2 form
prior to the October 15, 1997 extended deadline, appellant nonetheless
incurred penalty and interest charges. Moreover, it is evident from
appellant's affidavit that she is claiming that she suffered emotional
and physical stress as a result of the delay in providing her with the
corrected W-2 form. It is reasonable to conclude that appellant is seeking
compensatory damages. Therefore, we find that the agency's correction of
the erroneous W-2 form did not completely and irrevocably eradicate the
effects of the alleged violation. The Commission has held that an agency
must address the issue of compensatory damages when a complainant shows
objective evidence that he has incurred compensatory damages, and that
the damages are related to the alleged discrimination. Jackson v. USPS,
EEOC Appeal No. 01923399 (November 12, 1992), request to reopen denied,
EEOC Request No. 05930306 (February 1, 1993). Because appellant in
this case appears to make a claim for compensatory damages related to
the alleged discriminatory conduct of the agency, the agency should
request that appellant provide some objective proof of the alleged
damages incurred, as well as objective evidence linking those damages
to the adverse actions at issue. See Benton v. Department of Defense,
EEOC Appeal No. 01932422 (December 10, 1993). In light of appellant's
claim for compensatory damages, the effects of the alleged violations may
not have been completely eradicated. See Estafania v. Small Business
Administration, EEOC Appeal No. 01940838 (April 18, 1994). Therefore,
the instant complaint is hereby REMANDED for further processing in
accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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 22, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1The record does not establish when
appellant received the final agency decision. Absent evidence
to the contrary, we find that the instant appeal was timely filed.