01991138
02-24-2000
Ernest Pulido, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ernest Pulido v. United States Postal Service
01991138
February 24, 2000
Ernest Pulido, )
Complainant, )
)
v. ) Appeal No. 01991138
) Agency No. 4-F-840-0053-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 18, 1998, complainant filed an appeal with this Commission
from a final agency decision (FAD) dated October 7, 1998, pertaining
to his complaint of unlawful employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.<1> The appeal is accepted as timely
in accordance with EEOC Order No. 960, as amended.<2> In his complaint,
complainant alleged that he was subjected to discrimination on the
bases of age (date of birth April 28, 1952) and physical disability
(polio) when:
Complainant learned on November 17, 1997 that he was not being paid
at the correct level or rate; and
Complainant was removed in 1990 because of lack of work for him.
Originally, the agency issued a partial dismissal letter on April 13,
1998, dismissing claim (2) for untimely counselor contact, but accepting
claim (1). Then, the agency issued a new FAD on October 7, 1998,
dismissing both claims. The agency dismissed claim (1) for being moot.
Specifically, the agency found that complainant's pay was adjusted and
his step changed retroactive to November 8, 1997. Therefore, the agency
reasoned that the claim would not recur, and all harm was eradicated.
Regarding claim (2), the agency found that complainant contacted a
counselor on February 17, 1998, approximately eight years too late.
On appeal, complainant argues, through his representative, that the
harm was not eradicated, because it took eleven months for the agency
to adjust complainant's pay, and complainant suffered harm during the
interim that is not eradicated by the back-dated pay upgrade. Further,
complainant contends that the issue of being placed in the seniority
ranking has not been resolved, and should be considered as part of the
relief for claim (1).
In response, the agency asserts that the seniority issue is not a live
claim. Assuming that it was, however, the agency contends that seniority
was untimely raised, since complainant was re-employed on August 16, 1997.
The record includes a copy of complainant's information-for-precomplaint-
counseling form, dated December 17, 1997. The Counselor's Report, dated
February 20, 1998, lists complainant's initial date of contact with an
EEO Counselor as December 17, 1997.
After counseling concluded, complainant filed his formal complaint on
February 18, 1998. Therein, complainant requested that he "be made whole"
with respect to lost wages, pay status, lost leave, and seniority.
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 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 45 day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). 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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that complainant contacted a counselor on
December 17, 1997, not February 17, 1998, as set forth by the agency.
Nonetheless, this contact was untimely with respect to claim (2).
Complainant's seven-year delay was not justified. See Baldwin County
Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who
fails to act diligently cannot invoke equitable principles to excuse lack
of diligence"); Rys v. United States Postal Service, 886 F.2d 443, 446
(1st Cir. 1989) ("to find succor in equity a Title VII plaintiff must
have diligently pursued her claim"). Further, this claim is too remote
from his other contentions to be considered part of a continuing pattern.
EEOC Regulations require the dismissal of complaints when the issues
raised therein are moot. See 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(5)).
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.
Regarding claim (1), the Commission agrees with complainant that his
seniority is tied into his claim for corrected pay step and status.
The agency failed to address this matter in its FAD. Further, complainant
requested compensatory damages in his formal complaint, and on appeal.
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). 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). Where a complainant has
requested compensatory damages, and the agency has failed to address
the issue, dismissal on the grounds of mootness is not appropriate.
See Hofman v. Department of the Navy, EEOC Request No. 05970962 (October
28, 1999) (noting that "the issue cannot be moot because the second prong
of the mootness test . . . has not been satisfied" when compensatory
damages are not addressed); Henderson v. United States Postal Service,
EEOC Request No. 05980316 (July 9, 1999).
CONCLUSION
Accordingly, the agency's dismissal of claim (2) is AFFIRMED. However,
the dismissal of claim (1) is REVERSED, and the claim is REMANDED for
further processing.
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 (M1199)
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). 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:
February 24, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On 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.
2The agency contends that the appeal was untimely, but failed to
supply a copy of a certified mail return receipt or any other material
capable of establishing the date complainant received the dismissal.
Accordingly, since the agency failed to submit evidence of the date of
receipt, the Commission presumes that complainant's appeal was filed
within thirty (30) days of receipt of the agency's dismissal. See, 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter cited as
29 C.F.R. � 1614.402).