01986221_r
10-28-1999
Elizabeth Royster, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Elizabeth Royster, )
Appellant, )
)
v. ) Appeal No. 01986221
) Agency No. 4-G-720-0004-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On August 10, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated July 21, 1998, pertaining to
her complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq., and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The Commission accepts appellant's
appeal in accordance with EEOC Order No. 960, as amended.
In her complaint, appellant alleged that she was subjected to
discrimination on the bases of race (Negroid) and age (45) when:
On June 30, 1997, appellant was given a predisciplinary discussion
due to appellant's absence on Saturday June 28, 1997. Also, appellant
was instructed by the Postmaster not to discuss Union business at the
service window;
On July 3, 1997, appellant was given a discussion by her Supervisor
because appellant did not speak to him;
On July 9, 1997, appellant was issued a Letter of Warning (LOW) for
failure to follow instructions;
(a) On May 9, 1997, and (b) On July 16, 1997, window clerk positions
were abolished to keep appellant from bidding on them, and the duties
of those two positions were being performed by other employees; and
On August 2, 1997, a white female was transferred from Star City as a
Part-Time Flexible (PTF), but she works as a Full-Time Window Clerk.
As remedial relief, appellant requested, inter alia, compensatory damages.
The agency accepted allegations 4b and 5 for investigation. The agency
dismissed allegations 1, 2, and 4a pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely EEO contact, and allegation 3 pursuant
to 29 C.F.R. �1614.107(e), for mootness. Specifically, the agency
noted that appellant did not contact an EEO Counselor until August 21,
1997, which was more than 45 days from the date of the incidents raised
in allegations 1, 2, and 4a. With regard to allegation 3, the agency
found that the Letter of Warning was ultimately removed from appellant's
file as a result of a Step 3 grievance settlement, and that there is
no reasonable expectation that the alleged discrimination will recur.
The agency submitted a copy of the October 15, 1997 grievance decision,
as well as a copy of its EEO poster, containing the relevant 45-day
time limitation.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, the record clearly shows that appellant's initial contact date
of August 21, 1997, for allegations 1, 2, and 4a, was beyond the 45-day
limitation. Appellant failed to present adequate justification to warrant
an extension of the applicable time limit. Thus, the agency's dismissal
of allegations 1, 2, and 4a was proper.
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant'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.
The record clearly indicates that appellant's LOW was to be removed
pursuant to an October 15th, Step 3 grievance settlement. While the
removal of the letter is clearly one part of the remedial relief to which
she would be entitled if she ultimately prevailed on allegation 3, we note
that appellant also requested 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. USPS, EEOC Appeal No. 01923399 (November 12, 1992), request
to reopen denied, EEOC Request No. 05930306 (February 1, 1993).
Should appellant prevail on allegation 3, the possibility of an award of
compensatory damages exists. See Glover v. USPS, EEOC Appeal No. 01930696
(December 9, 1993). Therefore, we find that the dismissal of allegation
3 as moot was improper.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegations 1, 2, and 4a. The agency's dismissal of
allegation 3 is REVERSED and this allegation is REMANDED for further
processing in accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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 (T0993)
This decision affirms the agency's final decision 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 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.
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. 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 (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:
October 28, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations