01995182
03-15-2001
Gloria L. Oliver, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gloria L. Oliver v. United States Postal Service
01995182
March 15, 2001
.
Gloria L. Oliver,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995182
Agency No. 1-A-119-0005-99
DECISION
The record shows that complainant sought EEO counseling on November
16, 1998, claiming that she was discriminated against on the bases of
disability and in reprisal for prior protected activity when on October
13, 1998, the personnel office informed her they had no knowledge of
her transfer request; and on October 30, 1998, her Office of Workers'
Compensation (OWCP) claim was denied.
Subsequently, complainant filed a formal complaint claiming that she had
been discriminated against in reprisal for prior protected activity when:
(1) on October 13, 1998, she was informed that the personnel office
had not acted upon her transfer request; and (2) on October 30, 1998,
she received notification that her injury compensation claim was denied.
As corrective action, complainant requested, inter alia, to be compensated
for her stress.
The agency issued a final decision dismissing claim (1) for untimely EEO
Counselor contact. The agency also determined that claim (1) failed to
state a claim after the agency found that the transfer in question had
been granted. Claim (2) was dismissed for failure to state a claim.
On appeal, complainant contends that her initial EEO Counselor contact
was timely. She further contends that she is not claiming that her OWCP
claim was denied. She argues that claim (2) relates to the agency's
actions to influence the denial of her claim.
A review of the record shows that complainant's initial EEO Counselor
contact regarding claim (1) was timely. The incident in question
occurred on October 13, 1998. Complainant sought EEO counseling on
November 16, 1998. Therefore, complainant, by seeking EEO counseling
within 34 days of the alleged discriminatory incident, complied with the
45-day time limit provided by EEOC Regulations. Accordingly, claim (1)
was improperly dismissed for untimely EEO Counselor contact.
The agency also dismissed claim (1) for failure to state a claim,
finding that the claim was of no consequence any longer because the
transfer in question had been granted. We find that despite the agency's
determination that claim (1) fails to state a claim, the agency in essence
determined that claim (1) was rendered moot as a result of the grant of
the transfer.
EEOC Regulation 29 C.F.R. �1614.107(a)(5) provides in relevant part that
an agency shall dismiss 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.
The record shows that complainant requested compensatory damages in her
EEO complaint when she asked to be compensated for her stress. We have
consistently held that where a timely claim for compensatory damages
is made, the agency cannot dismiss the complaint for mootness, unless
it can show that complainant is not entitled to damages. Ellicker
v. U.S. Department of Agriculture, EEOC Request No. 05931079 (September
22, 1994). The agency failed to show that complainant is not entitled to
damages because the agency did not request from her objective evidence of
the harm suffered and the causation between the damages and the alleged
violation. Accordingly, we find that claim (1) was improperly dismissed.
In claim (2), complainant claims the agency engaged in conduct to
cause the denial of her OWCP claim. We find that the agency properly
dismissed this claim for failure to state a claim because it constitutes
a collateral attack on the decision making process of another forum
(OWCP) and, as such, fails to state a cognizable claim. See Reloj
v. Department of Veterans Affairs, EEOC Request No. 05960545 (June 5,
1998); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993).
Such claims are more properly addressed in that forum, rather than
in the EEO complaint process. See Lovell v. Department of the Navy,
EEOC Appeal No. 01962603 (February 27, 1997).
Accordingly, the agency's final decision dismissing claim (1) is
REVERSED. Claim (1) is hereby REMANDED for further processing in
accordance with the Order below. The dismissal of claim (2) is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
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 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
March 15, 2001
__________________
Date