01985910
01-19-2000
Stephanie Y. Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Stephanie Y. Brown v. United States Postal Service
01985910
January 19, 2000
Stephanie Y. Brown, )
Complainant, )
)
v. ) Appeal No. 01985910
) Agency No. 1-H-302-0075-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On July 26, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) issued to her on July 1, 1998,
pertaining to 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.<1> The Commission accepts complainant's appeal
in accordance with EEOC No. 960.001.
The record reflects that on March 26, 1998, complainant initiated contact
with an EEO Counselor, alleging that she was subjected to a pattern of
harassment leading to her removal on March 25, 1998.
Unable to resolve the above matter informally, complainant, on May
13, 1998, filed a formal complaint alleging that she was the victim of
unlawful employment discrimination on the bases of disability (physical)
and in retaliation for prior EEO activity. Complainant's complaint
was comprised of the matters for which she underwent EEO counseling,
discussed above. As remedial relief, complainant requested a letter
of assurance that no more harassment would occur, the removal rescinded
and expunged from all records, maximum compensatory and punitive damages
and attorney fees and costs.
On July 1, 1998, the agency issued a final decision dismissing
complainant's complaint for failure to state a claim. The agency found
that since the notice of removal was rescinded and removed from any and
all files within the agency, complainant is incapable of establishing
that she suffered any kind of a loss to a term, condition, or privilege
of employment.
The record indicates that complainant's removal was rescinded pursuant
to a Step 2 grievance settlement executed May 5, 1998.
On appeal, and in her complaint, complainant alleges that she has been
subjected to ongoing harassment. Complainant further argues that due
to her disability and prior EEO activity, she has been harassed and has
experienced pain and suffering, mental anguish, humiliation, loss of
career opportunities, and emotional pain and inconvenience.
Upon review, we find that the agency erred in dismissing complainant's
complaint for failure to state a claim. 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 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, .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, complainant alleged that she was subjected to
discrimination when she was issued a notice of removal. Clearly,
complainant has identified an adverse agency action which rendered her an
aggrieved employee. It appears that the agency's determination based on
the rescission of complainant's removal was a finding that the complaint
had been rendered moot.
Volume 64 Fed. Reg. 37,644 37,656 (1999) (to be codified at and
hereinafter referred to as 29 C.F.R. � 1614.107(e)), requires the
agency to dismiss a complaint which is moot. A complaint is moot and a
person is no longer aggrieved when it can be said with assurance that:
(1) interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation; and (2) there is no reasonable
expectation that the alleged violation will recur. When both conditions
are satisfied, neither party has a legal, cognizable interest in the
final determination of the underlying questions of fact and law. See,
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). Here, the
record indicates that the notice of removal was rescinded and removed
from complainant's files. We note, however, that as a result of her
removal, complainant asserts that she has experienced great hardship,
and for such, she is requesting compensatory damages.
The Commission has consistently 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 (November 12, 1992), request to reopen denied, 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. USPS, EEOC Appeal No. 01930696 (December 9, 1993). In this case,
complainant requested compensatory damages, thus, 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 Benton v. Department of Defense,
EEOC Appeal No. 01932422 (December 10, 1993). Therefore, the agency's
dismissal of this complaint is REVERSED. The complaint is REMANDED for
further processing in accordance with 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 (M1199)
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). 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:
January 19, 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.