Janet K. Long, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 10, 2000
01986390 (E.E.O.C. Apr. 10, 2000)

01986390

04-10-2000

Janet K. Long, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Janet K. Long v. United States Postal Service

01986390

April 10, 2000

Janet K. Long, )

Complainant, )

)

v. ) Appeal No. 01986390

) Agency No. 4F-907-0097-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On August 20, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) pertaining to her complaint of

unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. <1> The

agency characterized her complaint as alleging that she was subjected to

discrimination in reprisal for prior EEO activity when she was issued a

Notice of Suspension, dated February 19, 1998, for unacceptable conduct

(unscheduled absences and excessive tardiness).

In its April 20, 1998 FAD, the agency dismissed complainant's claim

pursuant to EEOC Regulations because the issue raised was moot.

Specifically, the agency determined that the Notice of Suspension was

rescinded in its entirety prior to the date it was to became effective.

A review of the record indicates that complainant has alleged, apart

from issuing the Notice of Suspension, that her supervisor has taken

other actions in order to harass her. First, complainant asserts

that, after her supervisor was forced by the Postmaster to rescind the

Notice of Suspension for taking approved leave, she gave complainant an

"Official Discussion" regarding her conduct in protesting the Notice.

Complainant's informal complaint also stated that she was "being harassed

by [her supervisor] by her refusing to approve my annual leave."

Additionally, the EEO Counselor report specifically noted as part of

complainant's requested remedy that her supervisor "cease the harassment

and verbal abuse."

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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 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.

In the present case, it is clear that the agency failed to properly

define complainant's complaint.

The record shows that complainant has not simply alleged that she was

issued a Notice of Suspension that was subsequently rescinded by the

agency. Rather, complainant has alleged that her supervisor has taken

a series of articulated actions, including the issuance of a Notice of

Suspension, in order to harass her. Therefore, we find that the agency

failed to correctly define complainant's claim of harassment, and has

improperly dismissed her complaint as moot.

Accordingly, the agency's final decision dismissing complainant's

complaint is REVERSED. The complaint, as defined herein, is REMANDED

to the agency for further processing in accordance with this decision

and the Order below.

ORDER (E1199)

The agency is ORDERED to process the remanded claims, as defined by the

Commission above, 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 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.

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 (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 (M0300)

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); 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 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 (R1199)

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:

April 10, 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.