01a46042
03-03-2006
Gloria Ann Pacheco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gloria Ann Pacheco v. United States Postal Service
01A46042
03-03-06
.
Gloria Ann Pacheco,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A46042
Agency No. 1E-871-0024-02
Hearing No. 350-2003-08143X
DECISION
The complainant filed a timely appeal with this Commission from the
agency's final order, dated August 2, 2004, which implemented the decision
of an EEOC Administrative Judge (AJ) dismissing complainant's complaint.
For the following reasons, the Commission will REVERSE the agency's
final order.
Complainant filed a complaint alleging that she was discriminated against
based on her national origin (Hispanic), sex (female), and in retaliation
for engaging in previous EEO activity when, on February 20, 2002, her
scheduled work hours were changed while co-workers were allowed to change
their schedules. In her June 16, 2004 Order to Show Cause, the AJ noted
that, pursuant to a grievance settlement reached between management and
the union, complainant and two co-workers were paid out-of-schedule pay
for the time they worked outside of their normal schedules. Consequently,
the AJ ordered complainant to demonstrate why her complaint should not be
dismissed as moot. Complainant was given until July 8, 2004 to provide
her response. On July 19, 2004, the AJ dismissed complainant's complaint
because she, �[F]ailed to present any evidence to demonstrate that the
issue was not settled or should not be considered moot.� On August 2,
2004, the agency issued a final action that implemented the AJ's decision.
This appeal followed.
Notwithstanding the AJ's use of the term �mootness,� the record is not
clear as to whether the AJ dismissed complainant's complaint pursuant
to 29 C.F.R. � 1614.107(a)(5) or as a sanction for not responding to
her Order to Show Cause. Therefore, we will address both issues.
To determine whether an allegation is moot, the fact-finder 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 AJ and the agency indicated that due to the
grievance settlement complainant's claim was now moot; however, neither
addressed whether or not the test set forth in Davis had been met.
Although the record indicates that complainant was provided interim
relief by way of the grievance settlement, we note that in her affidavit
she indicated that she has �anxiety due to job stress.� These comments
can reasonably be construed as a request for compensatory damages.<1>
Because complainant requested compensatory damages, the agency should have
requested that she provide some objective proof of the alleged damages
incurred, as well as objective evidence linking those damages to the
adverse action 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). Therefore, as the issue
of compensatory damages was not addressed, we find that dismissal of
this claim on the grounds that it was rendered moot was improper.
See Rouston v. National Aeronautics and Space Administration, EEOC
Request No. 05970388 (March 18, 1999).
Notwithstanding the above, we note that an AJ has the authority to
sanction a party for failing, without good cause shown, to fully comply
with an order. See 29 C.F.R. � 1614.109(f)(3). Dismissal of a complaint
as a sanction, however, is only appropriate in extreme circumstances,
where the complainant has engaged in contumacious conduct, not simple
negligence. See Hale v. Department of Justice, EEOC Appeal No. 01A03341
(December 12, 2000). Where a lesser sanction could deter the conduct
and equitably remedy the opposing party, an AJ may be abusing his or
her discretion by imposing a harsher sanction. Id. The Commission has
adopted the Black's Law Dictionary definition of contumacious conduct as
being �willfully stubborn and disobedient conduct.� See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, 7-25 (November
9, 1999).
Upon review, we find that although complainant failed to respond to the
AJ's June 16, 2004 order, there is no persuasive evidence contained
in the record that establishes that her actions rose to the level of
contumacious or delaying conduct. Accordingly, we find that a lesser
sanction would have been appropriate. Specifically, we find that the
AJ should have canceled the hearing and remanded the complaint to the
agency for a decision on the merits of her claim. Accordingly, the
agency's final action is REVERSED. The complaint will be REMANDED to
the agency for further processing in accordance with the Order below.
ORDER
Within 60 calendar days of the date this decision becomes final,
the agency shall issue a final decision addressing the merits of
the complainant's claims, and provide her with appeal rights to the
Commission. A copy of the final agency decision 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
___03-03-06_______________
Date
1The Commission has long held that an agency
must address the issue of compensatory damages when a complainant shows
objective evidence that they have incurred damages, and that the damages
are related to the alleged discrimination. Jackson v. United States
Postal Service, EEOC Request No. 01923399 (November 12, 1992), req. for
recons. den., EEOC Request No. 05930306 (February 1, 1993).