0120083247
12-18-2008
Shalmarie Cooley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shalmarie Cooley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083247
Agency No. 4G-870-0083-06
Hearing No. 540-2007-00077X
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the agency's final action dated June
24, 2008, 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In her complaint, complainant alleged that she was subjected to
discrimination based on sex (female) and disability when from January 27,
2006 through May 13, 2006, she was subjected to continuous harassment.
Following an investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ dismissed the complaint for being moot.
The record reflects that less than a week after complainant contacted an
EEO counselor regarding her complaint, she filed a union grievance on the
same matter. The parties promptly settled the grievance. In exchange for
resolving the grievance, the agency agreed to cease and desist and pay
$100 in compensation for mental anguish. The settlement did not refer
to or close complainant's EEO case, which continued with complainant
later filing her formal complaint and it being investigated.
The AJ found that that complainant's complaint was moot in light of the
grievance settlement because it had both injunctive relief and payment of
compensatory damages, the same relief she would receive if she prevailed
on her EEO complaint. The AJ distinguished a Commission case finding that
a complaint not moot in light of a grievance settlement on the grounds
that the one herein addressed compensatory damages. Kyriazi v. Department
of Defense (Defense Logistics Agency), EEOC Request No. 05930086 (1994).
The agency issued a final action implementing the AJ's decision.
On appeal, complainant argues that her complaint is not moot.
She reasons, in part, that the compensatory damages were insufficient.
In response to complainant's appeal, the agency supports the AJ's finding
that the complaint is moot.
The regulation set forth at 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 found that where a complainant has made a claim for
compensatory damages, the agency should request that the complainant
provide objective evidence of the alleged damages to demonstrate that
such an award is warranted and to justify the amount of any such award.
Allen v. United States Postal Service, EEOC Request No. 05970672 (June
11, 1998). There is no evidence this was done in the grievance process.
While complainant may have believed that her grievance was worth settling
for a promise that the conduct would cease and $100 in compensatory
damages, this does not mean she believed $100 was adequate compensation
for her injuries. At the time, her EEO claim was still alive, and the
settlement did not close the EEO claim. The agency has not shown that
interim relief or events have completely and irrevocably eradicated the
effects of the alleged discrimination.1
The agency's final action is reversed.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
Field or District Office a request for a hearing within fifteen (15)
calendar days after this decision becomes final. The hearing request
must include a brief explanation that it is being made pursuant to
this decision, and be accompanied with the complaint and investigative
files and a copy of this decision.2 The agency shall provide a copy of
the hearing request to the Compliance Officer at the address set forth
below, and a copy to complainant and her representative. Thereafter,
an Administrative Judge shall 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 (K0408)
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 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)
(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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 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 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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
with the
Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 18, 2008
__________________
Date
1 Also, in her complaint and EEO Investigative Affidavit for Compensatory
Damages, complainant indicated that she took leave as a result of the
harassment. The grievance settlement did not reimburse complainant's
leave.
2 Complainant contends that the alleged harassment continued for a year
past her grievance settlement. If complainant has not already filed
a separate complaint on this matter and wishes that it be part of her
claim before the Hearings Unit, she should promptly write a letter to
Administrative Judge assigned to her case describing the additional
incidents of alleged harassment and stating she wishes to amend her
complaint to include them. The AJ will then decide whether to do so.
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0120083247
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083247