0120113061
11-21-2011
Jacquelyn E. Sydes-Ward, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Jacquelyn E. Sydes-Ward,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120113061
Agency No. 4J-530-0021-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated May 5, 2011, dismissing her 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., and the
Age Discrimination in Employment Act (ADEA). Upon review, the Commission
finds that the Agency’s final decision dismissing the Complainant’s
complaint is improper and we REVERSE the Agency’s decision
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Clerk at the Agency’s Facility in Milwaukee, Wisconsin. On March
31, 2011, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of race (African-American),
age (41), and sex (female) when:
1. on December 3, 2010, she was issued a seven-day suspension for failure
to follow Instructions;
2. on December 22, 2010, she was charged absent without leave (AWOL); and
3. on January 19, 2011, she was issued a Letter of Demand because her
cash drawer was short.
The Agency issued a final decision on May 5, 2011, dismissing
Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(5)
for mootness. The Agency determined that it had resolved each of the
issues with Complainant prior to her filing the complaint. Specifically,
the Agency determined that as a result of grievance settlements, the
discipline issued to Complainant had been rescinded and expunged. The
Agency also dismissed Complainant’s complaint for failure to state
a claim pursuant to 1614.107(a)(1), finding that Complainant was
not “aggrieved” under the Commission’s regulations. The Agency
further dismissed Complainant’s complaint for failure to cooperate
and provide relevant information in accordance with 1614.107(a)(7). The
Agency found that Complainant failed to respond within 15 days of its
April 12, 2011, request that she provide an affidavit in regard to her
claim for compensatory damages.
ANALYSIS AND FINDINGS
Agency’s Dismissal for Mootness
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 a 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).
In cases where a complainant is seeking relief in the form of compensatory
damages, the Commission has generally held that a grievance settlement
does not eradicate the full effects of discrimination. See Shakespeare
v U.S. Postal Service, EEOC Appeal No. 01A62384 (June 26, 2006). In
the present case, Complainant is seeking compensatory damages for the
discrimination that she has alleged. As the Agency did not address the
issue of compensatory damages, we find that dismissal of the complaint
for mootness is improper.
Agency’s Dismissal for Failure to State a Claim
The Agency also dismissed Complainant’s complaint for failure to state
a claim. A complaint fails to state a claim under the EEOC regulations,
pursuant to 29 C.F.R. § 1614.107(a)(1),when the complainant fails to show
that she or he suffered harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. See Diaz v. Dep’t
of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The Commission has held that the issuance of discipline effects a personal
loss of harm regarding a term, condition or privilege of complainant’s
employment. See id. We also note that the grievance process did not
eradicate the effects of such harm. As such, Complainant’s complaint
warrants an investigation into the circumstances of the alleged
violations. On this basis, we find that the Agency improperly dismissed
Complainant’s complaint for failure to state a claim.
Agency’s Dismissal for Failure to Cooperate
The Agency dismissed Complainant’s complaint for failure to cooperate
pursuant to 29 C.F.R.
§ 1614.107(a)(7). This regulation provides for the dismissal of a
complaint where the agency provided complaint with a written request for
relevant information and Complainant failed to provide such information
within 15 days of its receipt. The Commission has held that an agency
should not dismiss a complaint when it has sufficient information upon
which an adjudication can he based. See Nunnery v. U.S. Postal Serv.,
EEOC Appeal No. 0120112681 (Oct. 12, 2011) (citing Ross v. U.S. Postal
Serv., Request No. 0500693 (Aug. 17, 1990)). It is only in cases where
the complainant has engaged in delay or contumacious conduct and the
record is insufficient to permit adjudication that the Commission
has allowed a complaint to be dismissed for failure to cooperate. See
Card v. U. S. Postal Serv., EEOC Request No. 05970095 (Apr. 23, 1998);
Kroeten v. U.S. Postal Serv., EEOC Request No. 05940451 (Dec. 22, 1994).
In the instant case, Complainant received the Agency’s request for
an affidavit for compensatory damages on April 21, 2011. Complainant
did return this form, postmarked on May 6, 2011, within 15 days of
receipt. This form was marked as received by the Agency on May 9, 2011.
The record therefore reflects that Complainant mailed the requested
information within the time frame required. On this basis, we find that
the Agency improperly dismissed Complainant’s complaint for failure
to cooperate.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED and the matter is REMANDED for further processing
as set forth below.
ORDER (E0610)
The Agency is ordered to continue processing the remanded claims in
accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge
to the Complainant that it has received the remanded claims 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
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 (Nov. 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 (R0610)
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 (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
November 21, 2011
Date
2
0120113061
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013