01983616_r
05-17-1999
Joseph T. Gore, )
Appellant, )
)
v. ) Appeal No. 01983616 ) 01983617
) Agency No. 4-K-220-0024-98
William J. Henderson, ) 4-K-220-0051-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 31, 1997, appellant contacted an EEO Counselor to complain of
being told by his supervisor not to process Delivery Point Sequence (DPS)
mail, and being required to provide medical evidence to substantiate his
sick leave. On January 23, 1998, appellant filed a formal complaint,
Agency Number 4-K-220-0024-98, alleging that he was discriminated against
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., on the bases of race (African-American) and
in reprisal for prior EEO activity when:
On October 23, 1997, appellant was told not to process DPS mail or he
would be fired;
On October 28, 1997, appellant was requested to provide documentation for
his absences on October 24, 1997, October 27, 1997, and also December 5,
1997; and
On December 19, 1997, appellant was issued a Letter of Warning (LOW)
for failure to follow instructions.
Meanwhile, appellant again initiated EEO contact on December 29, 1997,
to complain of being issued a LOW on December 19, 1997. On February 9,
1998, appellant filed a formal complaint, Agency Number 4-K-220-0051-98,
alleging that he was discriminated against on the bases of race
(African-American) and in reprisal for prior EEO activity when on
December 19, 1997, appellant was issued a LOW for failure to follow
instructions/failure to follow a direct order/delay of the mail/abandoning
the mail.
On February 9, 1998, appellant requested, through his attorney, that the
agency consolidate appellant's two formal complaints, Agency Numbers
4-K-220-0024-98 and 4-K-220-0051-98, �due to the strong nexus between
them.� The agency declined to consolidate the complaints, and issued
a separate Final Agency Decision (FAD) for each complaint.
In a FAD for Agency Number 4-K-220-0024-98, received by appellant's
attorney, on March 6, 1998, the agency accepted allegations (1)
and (2), but dismissed allegation (3) pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for alleging a matter not raised with the
EEO Counselor. Further, the agency found that allegation (3) was not
like or related to any matter that appellant raised with a counselor
in 4-K-220-0024-98. On April 6, 1998, appellant appealed the dismissal
of allegation (3) to the Commission, which was docketed as EEOC Appeal
No. 01983616.
In a separate FAD for Agency Number 4-K-220-0051-98, also received by
appellant's attorney on March 6, 1998, the agency dismissed appellant's
complaint pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), for failure
to state a claim. Specifically, the agency found that appellant did
not show how he was harmed by the LOW, especially in light of the LOW
being removed from his record pursuant to a January 8, 1998 grievance
settlement. Appellant also appealed the dismissal of Agency Number
4-K-220-0051-98 to the Commission on April 6, 1998, which was docketed
as EEOC Appeal No. 01983617.
On appeal, appellant claims that the LOW was issued as part of a
pattern of hostile work environment harassment, and thus should be
considered in light of the accepted allegations from 4-K-220-0024-98.
Appellant argues that he clearly discussed the LOW with an EEO counselor,
and claims that he is still aggrieved by the LOW because he requested
compensatory damages. Finally, appellant argues that the agency used
the administrative process to inhibit appellant's right to pursue his
complaints, and that therefore the agency should be required to pay
appellant's costs and attorney's fees, as in Weaver v. Department of
Defense, EEOC Appeal No. 01913114 (Dec. 5, 1991).
In response, the agency argues that 01983616 and 01983617 were untimely
appealed, because both appeals were postmarked thirty-one (31) days
after appellant's attorney received the FADs.
A review of the record reveals that appellant did not discuss receiving
a LOW in his October 31, 1997 Request for Counseling for Agency Number
4-K-220-0024-98, nor did the EEO Counselor raise the matter in his
February 4, 1998 Counselor's Report. The matter was raised, however,
in appellant's December 29, 1997 Request for Counseling in Agency Number
4-K-220-0051-98. The record also contains a copy of appellant's January
8, 1998 grievance settlement, which provided for the expungement of
appellant's December 18, 1997 LOW.
The record includes a copy of appellant's Formal Complaints, both
of which contain a request for compensatory damages. The record
also includes a February 11, 1998 letter from appellant's attorney,
refusing to provide any information on compensatory damages before any
allegations are accepted. The February 11, 1998 letter purports to
respond to a February 5, 1998 request from the agency for objective
proof of compensatory damages. A copy of the February 5, 1998 letter,
however, is not found in the record.
The thirtieth day following appellant's attorney's receipt of the agency
decision fell on Sunday, April 5, 1998, requiring an extension of the
time period for the filing of the appeal to the next business day, Monday,
April 6, 1998. 29 C.F.R. �1614.604(d). Accordingly appellant's appeals
of 01983616 and 01983617 are timely.
We note appellant's request to consolidate the appeals of 01983616 and
01983617. EEOC Regulation 29 C.F.R. �1614.606 allows the Commission, in
its discretion, to consolidate two or more complaints of discrimination
from the same complainant. Consequently, we agree to consolidate
appellant's appeals for a decision herein.
01983616
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds to or
clarifies the original complaint and could have reasonably been expected
to grow out of the original complaint during the investigation. See Scher
v. United States Postal Service, EEOC Request No. 05940702 (May 30, 1995).
We find that allegation (3) was not discussed with appellant's EEO
Counselor. Further, allegation (3) is not like or related to either
matter that appellant raised with the EEO Counselor for Agency Number
4-K-220-0024-98, i.e., appellant being required to provide medical
evidence of his sick leave, or appellant being told not to process
DPS mail. Accordingly, allegation (3) of Agency No. 4-K-220-0024-98
was properly dismissed.
01983617
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. 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 issuance of a LOW clearly harms a term, condition, or privilege of
the recipient's employment, and renders appellant aggrieved regardless
of whether the LOW was later rescinded. However, the January 8, 1998
grievance settlement may have eradicated the effects of the discrimination
alleged, and therefore we find that the present complaint is more properly
analyzed for whether it was rendered moot.
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant'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). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence that he
has incurred compensatory damages, and that the damages are related to
the alleged discrimination. Jackson v. USPS, EEOC Appeal No. 01923399
(Nov. 12, 1992), request to reopen denied, EEOC Request No. 05930306
(Feb. 1, 1993). Should appellant prevail on this complaint, the
possibility of an award of compensatory damages exists. See Glover
v. USPS, EEOC Appeal No. 01930696 (Dec. 9, 1993).
The record reveals that the agency requested objective proof of
compensatory damages, and appellant refused to respond to the request
on the (incorrect) grounds that he was not required to present any such
evidence until appellant's allegations were accepted. However, the
agency did not inform appellant that supporting evidence of compensatory
damages was necessary to determine whether appellant's complaint could be
accepted. Further, although we are unable to ascertain the exact language
of the agency's request for objective proof of compensatory damages,
we caution the agency that any such request should advise appellant to
submit objective evidence such as statements concerning his pain and
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character or reputation, injury
to credit standing, loss of health, and any other nonpecuniary losses
that are incurred as a result of the alleged discriminatory conduct.
The request further should advise appellant that he may submit statements
from others, including family members, friends, health care providers, or
other counselors. The objective evidence may include documents indicating
appellant's actual out-of-pocket expenses, if any, related to medical
treatment, counseling, and so forth, related to the injury allegedly
caused by the discrimination. The agency should advise appellant that he
must establish a connection between the alleged discriminatory action and
the resulting injury. We further note that an agency also should inform
appellant that a request for compensatory damages related to emotional
pain and suffering may permit the agency to seek personal and sensitive
information from him in order to determine whether the injury is linked
solely, partially, or not at all to the alleged discriminatory conduct.
See Broughton v. Department of Navy, EEOC Appeal No. 01951999 (Apr. 25,
1995). In light of appellant's claim for compensatory damages, and
the agency's failure to obtain objective evidence to support a finding
on mootness, the effects of the alleged violations may not have been
completely eradicated. See Faircloth v. Department of the Army, EEOC
Appeal No. 01954018. Therefore, the agency's dismissal of appellant's
complaint, Agency No. 4-K-220-0051-98, is REVERSED.
ATTORNEY'S FEES
Appellant argues that he is entitled to attorney's fees as in Weaver
v. Department of Defense, 01913114 (Dec. 5, 1991), because the agency's
dismissal of his complaints amounted to interference with appellant's
right to pursue his EEO complaints. In order to obtain attorney's fees,
appellant must be a prevailing party. Dailey v. Smithsonian Institution,
EEOC Request No. 05950225 (July 29, 1996).<1> Appellant clearly is not
the prevailing party in 01983616, where we affirmed the dismissal of
appellant's allegation. Appellant, then, must have been the prevailing
party in 01983617 in order to recover attorney's fees.
In Weaver, the Commission found that the agency's dismissal of a
complaint was improper, and ordered the agency to accept the complaint
for investigation. For several months after the Commission's decision
became final, however, the agency still had not begun an investigation;
and the Commission found that this delay in processing constituted
restraint and interference of an appellant's right to pursue an EEO
Complaint. The Commission found that complainant's expenses to force
the agency to comply with the Commission's decision were compensable,
because appellant was the prevailing party on the issue of interference
with his right to pursue an EEO Complaint.
The present case is not analogous to Weaver, however, because the
improper dismissal of a complaint does not amount to interference with an
appellant's right to pursue an EEO Complaint. See Garrity v. Government
Printing Office, EEOC Appeal No. 01966741 (Mar. 3, 1998)(finding that
despite appellant's argument citing Weaver, the agency's improper
dismissal of appellant's complaint for failure to state a claim did not
interfere with appellant's right to pursue an EEO complaint). Therefore,
appellant is not yet a prevailing party for purposes of receiving an
award of attorney's fees. See Dailey v. Smithsonian Institution, EEOC
Request No. 05950225 (July 29, 1996); see also Garrity v. Government
Printing Office, EEOC Appeal No. 01966741 (Mar. 3, 1998). Accordingly,
appellant is not entitled to attorney's fees at this time.
CONCLUSION
Accordingly, the agency's decision to dismiss allegation (3) in Agency
Number 4-K-220-0024-98 is AFFIRMED. The agency's decision to dismiss
appellant's complaint, Agency Number 4-K-220-0051-98, however, is REVERSED
and the complaint is REMANDED for further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
May 17, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations 1The Commission uses a two-prong test
to determine the prevailing party for purposes of entitlement
to attorney's fees: (1) Appellant must have, on a significant
issue, substantially received some of the relief he sought when he
initiated his EEO action; and (2) Appellant's EEO action must have
been the catalyst motivating the agency to provide the relief
granted. See Jansen v. Department of the Navy, EEOC Request
No. 05880641 (Dec. 20, 1988); See also Weaver v. Department of
Defense, EEOC Appeal No. 01913114.