Mary P. Gibbs, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01980421 (E.E.O.C. Mar. 16, 2000)

01980421

03-16-2000

Mary P. Gibbs, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Mary P. Gibbs v. United States Postal Service

01980421

March 16, 2000

Mary P. Gibbs, )

Complainant, )

)

v. ) Appeal Nos. 01980421, 01982270

) Agency Nos. 4D-290-0071-97, 4D-290-0031-97

)

William J. Henderson, ) (Consolidated)

Postmaster General, )

United States Postal Service, )

Agency. )

_______________________________)

DECISION

The Commission finds that the agency improperly dismissed complainant's

EEO complaints, in two separate final agency decisions (FAD-1

and FAD-2), for failure to state a claim.<1> See EEOC Regulation 64

Fed. Reg.37,656(1999)(hereinafter referred to and to be codified at 29

C.F.R � 1614.107(a)(1)). The agency has offered no arguments in response

to complainant's appeals to compel a contrary determination.<2> Although

the Commission has consolidated complainant's appeals, it now addresses

each appeal separately for the purpose of clarity.

Appeal No. 01980421 (Agency Case No. 4D-290-0071-97)

FAD-1, dated September 12, 1997, dismissed complainant's August 19, 1997

formal EEO Complaint ("Complaint-1," or "C-1") alleging harassment and a

hostile work environment. In her complaint, complainant alleged, inter

alia, that, for prohibited reasons,<3> her supervisor, the Postmaster

("PM"), "threatened to do bodily harm to me." Complainant did not

specify the language contained in the alleged threat. However, in her

precomplaint information form (PS Form 2564-A), complainant alleged,

in relevant part, that, in response to a letter she (complainant)

had written to a named District Manager, PM angrily told complaint

on February 22, 1997: "�This letter is a pack of lies, but YOU WILL

PAY'." (Emphasis in original.)<4>

FAD-1 declared that complainant, a Customer Services Supervisor ("CSS")

in Walterboro, South Carolina, had failed to show she suffered

personal injury from PM's alleged comments. In her October 6, 1997

appeal, complainant contends, in relevant part, that the agency has

"been aware since April, 1996[,] that I was being harassed by [PM],

but protected him and is still doing so."<5> There was no response by

the agency to complainant's appeal.

Appeal No. 01982270 (Agency Case No. 4D-290-0031-97 )

FAD-2, dated December 16, 1997, dismissed complainant's December

13,1996<6> formal EEO complaint ("Complaint-2," or "C-2") for failure to

state a claim. In her complaint, complainant had alleged that the PM, on

December 13, 1996, had given her a Letter of Warning (LOW) in retaliation

for her having filed prior complainants claiming that PM had harassed

her and created a hostile work environment. The LOW, dated December 13,

1996, charged complainant with failing to properly perform her duties.

FAD-2 dismissed the complaint for the stated reason that PM had removed

the LOW from complainant's records, effective November 27, 1997. In a

statement dated November 24, 1997, PM averred that "it is my decision

that the [LOW] is removed from [complainant's] records. As of [November

24, 1997], the [LOW] dated December 13, 1996...has been removed from

[complainant's] files." PM declared, inter alia, that complainant

"is no longer in this office under my supervision."

Although FAD-2 in the present matter, i.e.. Appeal No. 01982270, solely

addressed the issue of the LOW, set forth in complainant's December 16,

1996 complaint, the record in the aforesaid case contains two other

formal EEO complaints filed by complainant against the agency, which we

have designated Complaints 3 and 4 ("C-3," and "C-4").

In C-3, dated November 22, 1996 (agency case number 4D-290-0002-97),

complainant alleged, in pertinent part, that, in July and September

1996, based on race (Black), national origin (African-American), sex

(female), and age, PM subjected her to a hostile work environment when he

"talked negative [sic] about me to employees"; "undermined decisions I

have made letting the employee's [sic] know he is doing so [and] gave

me a bad evaluation on a job I applied for." In C-3, complainant also

referenced a "previous complaint."

In C-4, dated November 24, 1996 (agency case number 4D-290-0004-97),

complainant alleged discrimination based on race (Black), and sex

(female), when, from February 1995, until September 1996, "POOM" made

"sexual overtures" to her. In this complaint, too, complainant referenced

a "previous complaint." In addition, in C-4, complainant also referenced

her PS Form 2564-A, dated September 26, 1996, alleging sexual harassment

by POOM.<7>

The parties raised no new contentions on appeal.<8>

EEOC Regulations set forth at 64 Fed. Reg. 37,661 (1999) (hereinafter

referred to and to be codified at 29 C.F.R. � 1614.606), provide in

relevant part that "[t]wo or more complaints of discrimination filed

by the same complainant shall be consolidated by the agency for joint

processing after appropriate notification to the complainant." As the

Commission explained in its Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO-MD-110), as revised, November 9,

1999, at Ch. 5, � III(C), n.4:

Through mandatory consolidation, the Commission seeks to address the

situation where a single complainant has multiple complaints pending

against an agency. Even if the complaints are unrelated, their resolution

in a single proceeding will make better use of agency and Commission

resources.

As a threshold matter, therefore, the Commission finds that the agency's

failure to consolidate complainant's complaints, in the present case,

has served to diminish her claims of harassment and a hostile work

environment for prohibited reasons including reprisal. Viewed within this

context, then, we find the agency erred in dismissing Complaints 1 and

2. See Riden v. Department of the Treasury, EEOC Request No. 05970314

(October 2, 1998). And see the Commission's Guidance on Investigating,

Analyzing Retaliation Claims, Compliance Manual Section 8, Directives

Transmittal No. 915.003 (May 20, 1998).

The Commission further finds that, although the agency dismissed C-2

for failure to state a claim, the agency is actually declaring that C-2

should be dismissed for mootness because PM purportedly rescinded the LOW.

See 64 Fed. Reg. 37,656(1999)(hereinafter referred to and to be codified

as 29 C.F.R. � 1614.107(a)(5)).

A claim is deemed "moot," when: (1) 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

(1979). A claim may not be said to be moot when there is a request

for compensatory damages, as complainant appears to have made in the

present case, because of the potential for additional relief should

a complainant prevail on his or her claim.<9> As we stated in Hofmann

v. Department of the Navy, EEOC Request No. 05970962 (October 28, 1999):

The Commission has long held that where a complainant has requested

compensatory damages, the potential for said damages means that the matter

cannot be dismissed as moot until the agency has at least given the

[complainant] the opportunity to present evidence supporting her claim

for compensatory damages and then has either awarded the damages or has

shown that the [complainant] was not entitled to them [footnote omitted].

In light of our findings above, coupled with an unclear record,

the Commission hereby VACATES FAD-1 and FAD-2, in, respectively,

EEOC Appeal Nos. 01980421 and 01982270. Complainant's Complaints 1

and 2 are hereby REMANDED for further processing consistent with the

Commission's decision in the present matter and applicable regulations.

The parties are advised that this decision is not a decision on the

merits of complainant's complaints. The agency shall comply with the

Commission's ORDER set forth below.

ORDER

The agency is hereby ORDERED to take the following actions, with the

cooperation of complainant, if necessary, and that of her representative,

if any:

1. The agency shall consolidate all of complainant's pending complaints

against the agency during the relevant time period (1995 through 1997),

pertaining to her tenure at the Walterboro, South Carolina, facility,

including those complaints referenced in the present matter.

2. Since complainant indicated in the present case that she was

represented by counsel, the agency shall obtain, through complainant,

a notice of appearance from her attorney, filed with the agency,

stating that counsel is representing complainant in these matters or,

alternatively, a letter indicating that counsel is not representing

complainant in these matters.

3. The agency shall obtain a statement from complainant advising

the agency if she is seeking compensatory damages with regard to her

complaints, and, if so, present the agency with objective and other

evidence of compensatory damages directly or proximately caused by

the agency's alleged discrimination. In this regard, the Commission

directs the parties' attention to its decision in Schrahl v. Department

of Veterans Affairs, EEOC Appeal No. 01961614 (December 15, 1999).

4. The agency shall confirm the date that complainant assumed her position

as PM in the Round O, South Carolina, facility.

5. Thereafter, the agency shall issue a new final decision (FAD),

with appeal rights to the Commission, accepting those consolidated

complaints for investigation or dismissing them. Any dismissals of a

complaint shall be done in accordance with the Commission's regulations

set forth at 64 Fed. Reg. 37,656 (1999)(hereinafter referred to and to

be codified at 29 C.F.R. � 1614.107(b)); and EEO-MD-110 at Ch. 5, � IV(C).

6. The new FAD shall identify and address all claims in each complaint,

in particular those claims being dismissed. The new FAD shall not dismiss

claims, de facto, by not identifying and addressing them. The new FAD

shall state all legal grounds for dismissal, as well as the facts and

any evidence relied on, including specified documentation.

7. All Ordered agency actions, including the issuance of a new FAD,

shall be completed within ninety (90) calendar days of the date the

Commission's decision becomes final in this matter. The agency shall make

available true, complete, and clear copies of all relevant documents,

including the new FAD, to complainant, her representative, if any,

and to the Commission's 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:

March 16, 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.

2The Commission has found complainant's appeals to be timely (see, 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter referred

to as EEOC Regulation 29 C.F.R. � 1614.402(a)), and has accepted them

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. � 1614.405).

3Complainant alleged discrimination based on race (Black), National Origin

(Afro-American) sex (female), and retaliation, in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

as well as age (date of birth: August 16, 1946), in violation of the Age

Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. � 621 et seq.

4The nature of the letter is not entirely clear. However, we note from

documents contained in the record pertaining to EEOC Appeal No. 01982270,

which appeal we subsequently will address in this decision, complainant

allegedly requested, in March 1996, that a Financial Audit be conducted

in PM's facility. The audit allegedly "revealed some unfavorably

[sic] actvities of the [PM]," according to complaint, who also alleged

that, since the audit, PM had "done everything he can to get even with

me." See complainant's PS Form 2564-A, dated September 24, 1996. And see

complainant's PS Form 2564-A, dated December 27, 1996, also pertaining

to this case, i.e., the record in EEOC Appeal No. 01982270.

5Complainant also appears to have raised a claim for compensatory

damages. She further appears to argue that she took a salary decrease

"to get out of that office" and avoid "having a mental breakdown." We

note in this regard that complainant, according to a statement by her on

December 2, 1997, in EEOC Appeal No. 01982270, which case we discuss later

in this decision, became the Postmaster in the Round O, South Carolina,

facility. The record is not clear as to the date complainant assumed

her new position.

6The record is not clear in this regard. According to the EEO Counselor's

report (ECR), complainant initiated EEO contact on December 18, 1996. The

ECR further indicated that complainant acknowledged receipt of the Notice

of the Right to File a complaint on March 17, 1997.

7According to complainant, "POOM" was the named "Post Office Operational

Manager" in Charleston, South Carolina.

8The Commission has found complainant's appeal timely in the absence of

evidence as to when she received FAD-2.

9We again note complainant's assertion that she was forced to endure

a reduction in pay in order to escape from the alleged harassment and

hostile work environment.