Ann L. Cullerton, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01993143 (E.E.O.C. Mar. 17, 2000)

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.