0120113797
02-05-2013
Hala M. Farid, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Region), Agency.
Hala M. Farid,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Region),
Agency.
Appeal No. 0120113797
Agency No. 4H-320-0060-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 5, 2011, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as a Rural Carrier Associate at the Agency's Tallahassee, Florida Post Office.
On May 18, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race, national origin, and in reprisal for prior protected activity.
On July 5, 2011, the Agency issued a final decision. Therein, the Agency found that the formal complaint was comprised of four claims, which were identified as follows:
1. on an unspecified date, she was not paid correctly;
2. on February 8, 2011, she was issued a Letter of Warning, which was reduced to an official discussion;
3. on an unspecified date, management mistreated and humiliated her; and
4. on October 18, 2010, she was charged Absent Without Official Leave (AWOL).
The Agency dismissed claims 1 and 4 on the grounds that these two claims raise the same matters that are pending before or have been decided by the Agency. Specifically, the Agency stated that the identical claims were raised in Agency Case Nos. 4H-320-0033-11 and 4H-320-0008-11, respectively.
The Agency also dismissed claims 1 and 4 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was not rendered aggrieved. The Agency asserted that claim 1 constituted a collateral attack on another forum. Specifically, the Agency found that the matter raised in claim 1 had been resolved in a grievance process, on January 10, 2011. The Agency found that as a result of the grievance resolution Complainant received a lump sum in the amount of $1,622.18. The Agency determined that claim 1 should have been raised with the grievance process, and not in the EEO process.
The Agency dismissed claim 2 for failure to state a claim. Specifically, the Agency found that the Letter of Warning had been reduced to an official discussion as a result of a grievance settlement. The Agency also dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(5), on the grounds of mootness. The Agency noted that in her affidavit, Complainant alleged that she incurred physical symptoms of stomach problems and heartburn due to the financial stress of the errors in her pay stubs. The Agency determined that Complainant suffered a personal loss or harm with respect to a term, condition or privilege of her employment as a result of the alleged discriminatory event.
The Agency dismissed claim 3 for failure to state a claim. The Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
ANALYSIS AND FINDINGS
Claim 4
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that an agency shall dismiss a complaint that states the same claim that is pending or has been decided by the agency or Commission.
In her formal complaint, Complainant alleged that on October 18, 2010, she was charged AWOL. The record contains a copy of the Agency's final decision dated December 16, 2010 finding no breach of the November 9, 2010 settlement agreement under Agency No. 4H-320-0008-11. The record reflects that in the November 9, 2010 settlement agreement, the Agency agreed to remove Complainant's October 18, 2010 AWOL from her official personnel file which is the same claim in the instant case. 1 Consequently, we find that the Agency's dismissal of claim 4 pursuant to 29 C.F.R. � 1614.107(a)(1) was proper.
Because we affirm the Agency's decision to dismiss claim 4 for the reason stated herein, we do not find it necessary to address the Agency's decision to dismiss claim 4 on alternative grounds.
Claim 1
The Agency indicated that claim 1 constituted a collateral attack on the grievance process. As a point of clarification, we find that Complainant raised the same matter through the grievance process. The matter was resolved when the union entered into an agreement providing Complainant with a lump sum payment. We find that although the Agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, this matter is more properly analyzed in terms of whether the claim has been rendered moot by the grievance agreement.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant's complaint are 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. Dep't 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.
A review of the record indicates that Complainant alleged that based on the ongoing errors in her pay stubs, it created a financial hardship for her. Complainant further alleged that as a result of the financial stress, she is experiencing stomach ailments and heartburn. As such, we find that Complainant requested compensatory damages as remedy. Because Complainant has alleged that she has incurred compensatory damages due to the Agency's conduct, we cannot find that the effects of the alleged discrimination have been completely and irrevocably eradicated. When, as here, Complainant requests compensatory damages during the processing of a complaint, the Agency is obligated to request from that Complainant objective evidence of such damages. Should Complainant prevail in her claim, the possibility of an award of compensatory damages exists; therefore, her claim is not moot. Glover v. U.S. Postal Service, EEOC Appeal No. 01930696 (December 9, 1993). Therefore, we find that the dismissal of claim 1 was not appropriate.
Claims 2 and 3
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's Federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Agency improperly dismissed claims 2 and 3 for failure to state a claim. The formal complaint and pre-complaint documents identified a series of incidents that include Complainant was harassed when she was issued a Letter of Warning; and Agency management mistreated and humiliated her. As a remedy, Complainant requested a review of her pay stubs that were prepared by a named 204-B supervisor and make any corrections if necessary; compensatory damages, and that the harassment be ceased. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Moreover, we find that claim 2 was not rendered moot, at a minimum, because a fair reading of the record reflects that Complainant requested compensatory damages. We have held that an Agency must address the issue of compensatory damages when the Complainant presented objective evidence that she incurred compensatory damages and that the damages were related to the alleged discrimination. See Jackson v. U.S. Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request to reopen denied, EEOC Request No. 05930386 (February 11, 1993). Consequently, where, as here, a Complainant requests compensatory damages during the processing of her complaint, the Agency is obliged to request from the Complainant objective evidence of such damages. In this case, Complainant completed and signed an EEO Investigative Affidavit for Compensatory Damages, PS Form 2569-C dated June 20, 2011. Therein, Complainant asserts, in pertinent part, that as a result of the alleged discrimination, she suffered stomach ailments and heartburn. In addition, Complainant asserts that she underwent financial hardship stress. We find Complainant's affidavit sufficient evidence, at this juncture, to maintain her claim for compensatory damages.
Accordingly, we AFFIRM the Agency's final decision dismissing claim 4 for stating the same claim. We REVERSE the Agency's final decision dismissing claims 1 - 3. Claims 1 - 3 are REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claims (claims 1 - 3) 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (T0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
February 5, 2013
__________________
Date
1 Complainant filed a timely appeal from the Agency's December 16, 2010 final decision on the breach claim. Therein, the Commission affirmed the Agency's finding of no breach, and stated that "management indicated that the AWOL charge was immediately removed as provided for in the agreement." Farid v. USPS, EEOC Appeal No. 0120111301 (June 10, 2011); request to reconsider denied, EEOC Request No. 0520110551 (September 20, 2011).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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