01a54841
11-22-2005
Kelly S. Mixon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kelly S. Mixon v. United States Postal Service
01A54841
11-22-05
.
Kelly S. Mixon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54841
Agency No. 4J-604-0088-05
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In a complaint dated May 24, 2005, complainant
alleged that she was subjected to discrimination on the bases of race
(African-American), sex (female), disability, and reprisal for prior
EEO activity when on February 26, 2005, she was placed in an Emergency
Placement in an Off Duty Status and on April 1, 2005, she received a
Notice of Removal for unauthorized deviation and unacceptable conduct.
The record indicates that complainant filed a grievance regarding the
Emergency Placement in a Off-Duty Status. This issue was resolved by the
Dispute Resolution Team (DRT) in a Step B Decision dated April 14, 2005.
Specifically, the DRT determined that management failed to show reasonable
cause to invoke the action. It was agreed that the Emergency Placement
would be expunged from complainant's record and complainant would be
made whole for all lost wages and be immediately placed in pay status.
A grievance was also filed regarding the Notice of Removal. This issue
was also resolved by the DRT. It was determined that the Notice of
Removal was not issued for just cause so complainant would be returned
to duty and provided with full back pay.
In the case at hand, complainant contends that she is not attacking the
negotiated grievance process which returned her to work with backpay.
She is however, contesting the fact that she was not awarded compensatory
damages, attorney's fees, and was not issued a cease an desist order
against the agency which would have prevented the agency from taking
retaliatory action against complainant.
The agency dismissed complainant's complaint for failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1). EEOC Regulation 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).
We find that the agency's actions of placing complainant in emergency
off-duty status and issuance of the Notice of Removal for unauthorized
deviation and unacceptable conduct states a claim, and thus, the
agency improperly dismissed complainant's complaint for failure to
state a claim. Although the record reveals that the above stated issues
were resolved in the grievance process potentially making complainant's
complaint moot, the agency failed to address her request for compensatory
damages. The agency should have requested that complainant provide some
objective proof of the alleged damages incurred, as well as objective
evidence linking those damages to the adverse actions at issue. See
Allen v. United States Postal Service, EEOC Request No. 05970672 (June
12, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422
(December 3, 1993). Should complainant prevail on her claim that the
agency violated the Rehabilitation Act, the possibility of an award of
compensatory damages exists. See Glover v. United States Postal Service,
EEOC Appeal No. 01930696 (December 9, 1993)
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby remanded to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 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 (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
___11-22-05_______________
Date