Pamela A. Barker, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 9, 2000
01984444 (E.E.O.C. Mar. 9, 2000)

01984444

03-09-2000

Pamela A. Barker, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Pamela A. Barker v. United States Postal Service

01984444

March 9, 2000

Pamela A. Barker, )

Complainant, )

)

v. ) Appeal No. 01984444

) Agency No. 1D-284-0033-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning 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., and Section 501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. 791 et seq.<1> The final agency decision

was issued on April 8, 1998. The appeal was postmarked May 11, 1998.

Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),

and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. �1614.405).<2>

ISSUE PRESENTED

The issue presented on appeal is whether the agency properly dismissed

the complaint on the grounds of failure to state a claim.

BACKGROUND

Complainant initiated contact with an EEO Counselor on September 2, 1997.

In a formal EEO complaint dated December 2, 1997, complainant claimed

that she was discriminated against on the bases of her sex (female)

and mental disability (bi-polar disorder) when:

1. On July 25, 1997, she received a notice of removal and subsequently

was removed on August 2, 1997.

2. On approximately July 28-31, 1997, a letter was posted on the board

stating that she had relinquished the job that had been awarded to her.

3. On approximately August 30, 1997, she learned a comparative individual

was given an opportunity to speak to the Plant Manager regarding his

removal but she was not afforded the same opportunity.

As relief in part, complainant requested that she receive compensatory

damages for the embarrassment and suffering she experienced due to

her removal.

In its final decision, the agency dismissed the complaint on the

grounds that it failed to state a claim. The agency determined that in

a grievance settlement in October 1997, it was agreed that the removal

action would be set aside and that complainant would be returned to work

with back pay. The agency stated that the settlement also provided

that the last chance agreement was revoked. The agency noted that

complainant returned to work on November 17, 1997. In conclusion,

the agency determined that complainant was no longer aggrieved since

she would not benefit from the intervention of the Commission.

On appeal, complainant maintains that nothing was posted for other

employees to see that she had been returned to her position. Complainant

claims that the removal caused her undue hardship and embarrassment,

which led to her hospitalization for depression. Complainant also argues

that the removal letter issued to her was different than that issued to

a male employee. Complainant further claims that preferential treatment

was given to the male employee who was allowed to speak to the Plant

Manager regarding his removal.

ANALYSIS AND FINDINGS

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

cited as 29 C.F.R. �1614.107(a)(1)) 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. 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified and hereinafter referred to as 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 22, 1994).

In the present case, we find with regard to the first claim that

complainant's removal clearly relates to a term, condition, or privilege

of complainant's employment and, therefore, the first claim states a

valid claim. As for the second claim, we find that the posting of a

letter stating that complainant had relinquished the job that she had been

awarded also involves a term, condition, or privilege of complainant's

employment. With regard to the third claim, we find that not affording

complainant the opportunity to speak to the Plant Manager about her

removal concerns the manner in which the removal was implemented, i.e.,

that different removal procedures were used for complainant's removal than

for a comparative's removal. We find that implementation of different

removal procedures clearly affects a term, condition, or privilege of

complainant's employment and, therefore, states a processable claim.

We note that the agency reasoned that complainant is no longer aggrieved

because a grievance settlement resulted in her returning to work

with backpay. The issue of whether the grievance settlement resolved

complainant's claims dictates an analysis of whether the complaint has

been rendered moot.

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.

The Commission has held that an agency must address the issue of

compensatory damages when a complainant shows objective evidence that

she has incurred compensatory damages, and that the damages are related

to the alleged discrimination. Jackson v. United States Postal Service,

EEOC Appeal No. 01923399 (November 12, 1992), req. for recons. den.,

EEOC Request No. 05930306 (February 1, 1993). Should complainant

prevail on this complaint, the possibility of an award of compensatory

damages exists. See Glover v. United States Postal Service, EEOC

Appeal No. 01930696 (December 9, 1993). Because complainant requested

compensatory damages, the agency should have requested that complainant

provide some objective proof of the alleged damages incurred, as well as

objective evidence linking those damages to the adverse actions at issue.

See Allen v. United States Postal Service, EEOC Request No. 05970672

(June 12, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422

(December 3, 1993).

We find that in light of complainant's request for compensatory damages,

the grievance settlement's return of complainant to her position with

backpay did not render the complaint moot.

CONCLUSION

The agency's dismissal of the subject complaint is hereby REVERSED.

The complaint is hereby REMANDED for further processing pursuant to the

ORDER below.

ORDER (E1199)

The agency is ORDERED to process the remanded claims 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 an

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:

March 9, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 record does not establish when complainant received the final

agency decision. Absent evidence to the contrary, we find that the

instant appeal was timely filed.