0120101286
06-08-2010
Thelma A. Cavales, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thelma A. Cavales,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120101286
Agency No. 4F-940-0128-09
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision dated December 15, 2009, dismissing her formal
complaint of unlawful employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
On July 27, 2009, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
On November 16, 2009, complainant filed the instant formal complaint.
Therein, complainant claimed that she was subjected to discrimination
on the basis of age when:
(1) on April 10, 2009, she was issued a Seven Day Suspension which she
served from June 1, 2009 to June 7, 2009; and
(2) on June 19, 2009, she was issued a Fourteen Day Suspension which
was reduced to an Official Discussion.
One of complainant's requested remedies was that she "be made whole,
that I be compensated for the suspension period served."
In its December 15, 2009 final decision, the agency dismissed claim 1 on
the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2). Specifically, the agency noted that complainant's July
27, 2009 EEO Counselor contact was beyond the 45-day limitation period.
The agency dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim, finding that complainant was not aggrieved.
The agency determined that the June 19, 2009 Fourteen Day Suspension
was reduced to an Official Discussion; and that complainant failed to
show that the incident resulted in a harm or loss to a term, condition
or privilege of her employment.
Claim (1)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The agency properly dismissed claim (1) on the grounds of untimely
EEO Counselor contact. The record reveals that on April 10, 2009,
complainant was issued a Seven Day Suspension which she served from
June 1, 2009 to June 7, 2009. The record contains a copy of the EEO
Counselor's Report. Therein, the EEO Counselor stated that complainant
"was advised that some of her claims could possibly be dismissed as being
filed beyond the 45-day period of timely requesting EEO counseling.
She said that she did not file sooner because she thought the claims
were small at first, then it escalated." We note that complainant,
on appeal, did not present persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Therefore, the agency's dismissal of claim (1) on the grounds of untimely
EEO Counselor contact was proper.
Claim (2)
The Commission finds that while the agency dismissed claim (2) for
failure to state a claim, the matter is more properly analyzed in terms
of whether it has been rendered 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 fact finder 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.
Claim (2) has not been rendered moot at a minimum, because a fair reading
of complainant's requested remedies in her formal complaint reflects
that complainant has requested compensatory damages. Where, as here,
a complainant requests compensatory damages, the agency had a duty to
address the issue of compensatory damages. In this case, the agency
did not address the issue of compensatory damages. If complainant were
to prevail, the possibility of an award of compensatory damages exists,
and claim (2) is not moot.
According, the agency's dismissal of claim (1) is AFFIRMED. The agency's
dismissal of claim (2) was improper, and is hereby REVERSED. Claim (2)
is REMANDED to the agency for further processing in accordance with this
decision and the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claim (claim (2)) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim 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 a
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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
June 8, 2010
__________________
Date
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0120101286
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101286