0120152160
02-03-2016
Tomeka T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tomeka T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120152160
Agency No. 4F-940-0021-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 27, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Post Office facility in Sunnyvale, California.
On April 21, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (Hispanic),2 sex (female), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when, on January 17, 2015, she became aware that management deducted $ 267.03 from her paycheck for an alleged indebtedness. Complainant informed the EEO Counselor that "she is a single parent and any deductions above and beyond the regular deductions caused financial and emotional harm." She noted that this was a form of retaliation and harassment.
On May 5, 2015, the Agency requested additional information from Complainant. The letter indicated that Complainant had been repaid the amount deducted from her paycheck. Furthermore, the computer error that caused the deduction had been fixed. As such, the Agency asked Complainant to provide her evidence regarding damages and provided Complainant with an interrogatory request seeking specific information in support of her claim for compensatory damages.
Complainant's non-attorney representative (Representative) responded to the Agency's May 5, 2015 request. The Representative interpreted the Agency's letter to insinuate that Complainant was not aggrieved by the alleged claim of discrimination and that the Agency intended to dismissal the matter pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. As such, the Representative argued that the most recent event was part of a larger claim of harassment in retaliation for Complainant's prior protected EEO activity, citing her two cases pending before an Equal Employment Opportunity Commission Administrative Judge. The Representative was so focused on the issue of whether Complainant was aggrieved, he failed to provide any evidence regarding Complainant's claim for compensatory damages. The only statement he made regarding Complainant's claim for damages was:
The Complainant alleges that the money that was taken out of her paycheck was done with discriminatory motivation, and furthermore the action of the Agency caused her to suffer harm both emotionally, and financially. The Complainant is under the care of a psychiatrist, and takes medication as a result of the Agency's discriminatory actions. The Agency is well aware of the Complainant's physical and mental disabilities as the Complainant.
The Agency dismissed complaint pursuant to 29 C.F.R. � 1614.107(a)(5) for mootness. The Agency noted that Complainant had been repaid the amount deducted from her paycheck based on an existing indebtedness which Complainant has challenged. As such, the deductions were placed on hold pending the Agency's determination of indebtedness issue. The Agency also indicated that it was a computer issue that has been corrected and it would not recur while her appeal of the debt is being considered. The Agency noted that the Representative failed to provide any evidence to support Complainant's claim for compensatory damages. As such, the Agency found that the matter was moot and dismissed the complaint. The Agency also noted that the Representative signed the formal complaint and the additional information on Complainant's behalf. The Agency indicated that the Representative is a non-attorney and must have Complainant sign the documents. The Agency however did not dismiss the complaint based on the procedural flaw.
The Representative appealed asserting that the Agency's dismissal is not appropriate. The Representative argued that Complainant has asserted a claim of harassment and reprisal for which she was harmed. The Representative indicated that the harm has not been cured. As such, the Representative claimed that Complainant has stated a judiciable claim of discrimination and the dismissal is not appropriate. The Representative noted that he signed on Complainant's behalf due to her medical condition she is in which was caused by the Agency's harassment. The Agency asked that the Commission affirm its dismissal action.
ANALYSIS AND FINDINGS
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. 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.
Upon review of the record, we find that the Agency's dismissal was appropriate. The record indicated that the deduction to Complainant's paycheck was corrected and that the computer glitch was fixed. The deduction has been placed on hold pending Complainant's appeal of the indebtedness determination. If in the future, the Agency issues a final decision regarding the indebtedness, Complainant may file a new complaint on that matter. As such, we find that the Agency has indicated that there is no reasonable expectation that the alleged event shall recur.
As to the complaint as a whole, Complainant also sought compensatory damages. Because Complainant requested compensatory damages, the Agency requested that Complainant provide some objective proof of the alleged damages incurred, as well as objective evidence linking those damages to the adverse action at issue. See Allen v. U.S. Postal Serv., EEOC Request No. 05970672 (June 12, 1998); Benton v. Dep't. of Defense, EEOC Appeal No. 01932422 (Dec. 3, 1993). The Representative responded on Complainant's behalf to the Agency's request. However, the Representative failed to provide evidence regarding Complainant's claim for compensatory damages. His statement is not evidence but merely arguments. In addition, the Representative focused his arguments on the issue of whether Complainant stated a judicable claim rather than responding to the specific request made by the Agency. Therefore, based on the Representative's submissions, we find that Complainant has not provided objective proof of alleged damages. Therefore, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(5) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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. 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 (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
February 3, 2016
__________________
Date
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.
2 Although Complainant also alleged discrimination on the basis of race (Hispanic), the Commission notes that it considers the term "Hispanic" to be a national origin rather than a racial group.
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