01993380
11-15-2000
Yahshable Baker, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Yahshable Baker v. United States Postal Service
01993380
November 15, 2000
.
Yahshable Baker,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993380
Agency No. 1K-221-0011-99
DECISION
Complainant 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. The final decision was issued on March 3, 1999.
BACKGROUND
Complainant initiated contact with an EEO Counselor on October 19, 1998.
On January 6, 1999, complainant filed a formal EEO complaint wherein
she claimed that she was discriminated against on the bases of her race
(Black), color (black), sex (female), and in reprisal for her previous
EEO activity when:
1. On October 8, 1998, a certain supervisor was reassigned as her
supervisor and this caused a very stressful situation for her.
2. On October 9, 1998, her supervisor paged only her all night.
3. On October 17, 1998, her supervisor documented her as being absent
without leave (AWOL) even though she had scheduled annual leave.
4. On October 24, 1998, her supervisor reviewed his reference card with
her and advised her that he was going to send the reference card to her
supervisor on the new tour that she was working.
As relief, complainant requested in part that she be awarded compensatory
damages.
In its final decision, the agency dismissed the complaint on the grounds
that it failed to state a claim. The agency determined that complainant
did not suffer a personal loss or harm to a term or condition of her
employment as a result of the alleged actions. The agency stated that
complainant failed to show how the supervisor's reassignment caused her
stress. The agency reasoned that no adverse action was taken against
complainant on October 8, 1998. With regard to claim 2, the agency
determined that even if the supervisor did page complainant, it did not
cause a personal loss or harm that would render complainant aggrieved.
As for complainant being marked AWOL, the agency noted that the supervisor
had not been notified that complainant was on annual leave. According
to the agency, the supervisor rectified the situation once he learned
that complainant was on annual leave, and that complainant was paid for
October 17, 1998. With regard to claim 4, the agency determined that it
is standard operating procedure that when an employee is transferred to
a job on another tour, the employee's reference/attendance card is sent
to the new supervisor. The agency noted that the supervisor stated that
he did not intend to harass the complainant by this action.
ANALYSIS AND FINDINGS
The regulation 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.
The Commission's federal sector case precedent has 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 22,
1994).
With regard to claim 3, we find that documenting complainant as AWOL
related to a term of her employment. Therefore, we find that complainant
is an aggrieved employee and has stated a cognizable claim as to claim 3.
The agency reasoned that complainant was not harmed because the mistake
of marking her AWOL was rectified and complainant was paid for the date
of October 17, 1998. The agency in effect argues that claim 3 is moot.
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).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
Complainant has requested an award of compensatory damages.
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. Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992), req. for recons. den.,
EEOC Request No. 05930306 (February 1, 1993). Should complainant
prevail on this complaint, the possibility of an award of compensatory
damages exists. See Glover v. United States Postal Service, EEOC
Appeal No. 01930696 (December 9, 1993). Because complainant requested
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). We find that in light of complainant's request for
compensatory damages, claim 3 is not moot.
Complainant also claimed that she was discriminated against when her
supervisor was reassigned into the supervisory position; her supervisor
paged only her all night; and her supervisor told her that he was
going to send the reference card to her supervisor on her new tour.
The record indicates that at least part of this complaint was interpreted
as a claim of harassment. Assuming arguendo that complainant intended
her complaint to state a claim of harassment, we find that claims 1, 2,
and 4 even in conjunction with the remanded claim 3 are not sufficiently
severe or pervasive to constitute harassment. We find that claims 1,
2, and 3 were properly dismissed pursuant to �1614.107(a)(1).
CONCLUSION
The agency's dismissal of the portion of the subject complaint concerning
claims 1, 2, and 4 is hereby AFFIRMED. The agency's dismissal of claim
3 is hereby REVERSED and REMANDED for further processing pursuant to
the ORDER herein.
ORDER
The agency is ordered to process the remanded claim (Claim 3) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge
to the complainant that it has received the remanded claim (Claim 3)
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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 15, 2000
__________________
Date