[Redacted], Giselle L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020002138 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Giselle L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020002138 Hearing No. 471-2019-00003X Agency No. 4J-481-0063-18 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's January 2, 2020 final decision 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. For the following reasons, we REVERSE the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Assistant 1, 01/AA, at the Agency’s Southfield Post Office, Southfield, Michigan. On May 3, 2018, Complainant filed her complaint alleging that she was subjected to discriminatory harassment in retaliation for prior EEO activity when: 1. On January 28, 2018, she was verbally and physically assaulted by management; and 2. On January 31, 2018, she was involuntarily moved to a different office. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020002138 2 As relief, Complainant indicated in her formal complaint that she sought: (1) accountability for violations of the Postal Service Anti-Violence Contract; (2) right to work in the Southfield Post Office “free from retaliation and harassment;” and (3) compensation for mileage out of schedule pay, restoration of relative standing and all contracted rights, all other compensations deemed fair for damages. The record indicates that on February 28, 2018, Complainant filed a grievance claiming that management violated the Joint Statement on Violence and Behavior in the Workplace when she was instructed to report to another office instead of the Southfield Post Office. Complainant’s claims were resolved via a grievance settlement agreement on July 3, 2018. In that agreement, the Agency agreed to return Complainant to the Southfield office effective July 7, 2018; to return her to the assignment she was on prior to leaving Southfield; and to compensate her for travel in the amount of $931.70. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On November 14, 2019, the AJ issued a Notice of Intent to Dismiss Case. Therein, the AJ stated that the instant case might be appropriate for dismissal since Complainant received all the relief requested through the grievance settlement agreement. The AJ notified Complainant that the complaint would be dismissed unless she provided an objection to the proposal dismissal and a meritorious reason as to why the case should continue. In response, Complainant filed Objections to Notice of Intent of Dismissing and objected to the dismissal of her case. Complainant stated that she was entitled to compensatory damages due to the alleged incidents which also caused her financial losses. On December 20, 2019, the AJ issued a Decision and Order Dismissing Complaint as moot after finding that Complainant settled her claims and received the relief she requested in her complaint. The Agency issued its final decision dismissing the complaint as moot, pursuant to 29 C.F.R. § 1614.107(a)(5). Complainant appealed. Complainant claimed that she was entitled to compensatory damages and that she only received $650.69 for mileage, and not $931.70. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides that the agency shall dismiss a complaint that is 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. Dep’t 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. 2020002138 3 Upon review, we find that the Agency improperly dismissed Complainant’s complaint as moot. The record indicates that Complainant entered into the July 3, 2018 grievance settlement agreement resolving the same claims at issue. Despite this agreement, the instant complaint was not rendered moot because the record does not support a finding that the interim relief has completely and irrevocably eradicated the effects of the alleged discrimination. Complainant indicates that she was not fully reimbursed for mileage expenses she spent traveling to and from the office to which she was improperly assigned. The Agency has not provided evidence showing such remedies have been paid. Furthermore, it is clear that Complainant is requesting compensatory damages so on remand it would not be moot even if the full travel reimbursement was made unless the issue of compensatory damages was investigated and addressed. CONCLUSION Accordingly, the Commission REVERSES the Agency's final decision and REMANDS the complaint to the Agency for further action in accordance with this decision and the Order herein. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit in the Detroit Field Office within 15 calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. §1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. 2020002138 4 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020002138 5 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 3, 2021 Date