Yahshable Baker, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 15, 2000
01993380 (E.E.O.C. Nov. 15, 2000)

01993380

11-15-2000

Yahshable Baker, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Yahshable Baker v. United States Postal Service

01993380

November 15, 2000

.

Yahshable Baker,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01993380

Agency No. 1K-221-0011-99

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning 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. The final decision was issued on March 3, 1999.

BACKGROUND

Complainant initiated contact with an EEO Counselor on October 19, 1998.

On January 6, 1999, complainant filed a formal EEO complaint wherein

she claimed that she was discriminated against on the bases of her race

(Black), color (black), sex (female), and in reprisal for her previous

EEO activity when:

1. On October 8, 1998, a certain supervisor was reassigned as her

supervisor and this caused a very stressful situation for her.

2. On October 9, 1998, her supervisor paged only her all night.

3. On October 17, 1998, her supervisor documented her as being absent

without leave (AWOL) even though she had scheduled annual leave.

4. On October 24, 1998, her supervisor reviewed his reference card with

her and advised her that he was going to send the reference card to her

supervisor on the new tour that she was working.

As relief, complainant requested in part that she be awarded compensatory

damages.

In its final decision, the agency dismissed the complaint on the grounds

that it failed to state a claim. The agency determined that complainant

did not suffer a personal loss or harm to a term or condition of her

employment as a result of the alleged actions. The agency stated that

complainant failed to show how the supervisor's reassignment caused her

stress. The agency reasoned that no adverse action was taken against

complainant on October 8, 1998. With regard to claim 2, the agency

determined that even if the supervisor did page complainant, it did not

cause a personal loss or harm that would render complainant aggrieved.

As for complainant being marked AWOL, the agency noted that the supervisor

had not been notified that complainant was on annual leave. According

to the agency, the supervisor rectified the situation once he learned

that complainant was on annual leave, and that complainant was paid for

October 17, 1998. With regard to claim 4, the agency determined that it

is standard operating procedure that when an employee is transferred to

a job on another tour, the employee's reference/attendance card is sent

to the new supervisor. The agency noted that the supervisor stated that

he did not intend to harass the complainant by this action.

ANALYSIS AND FINDINGS

The regulation at 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.

The Commission's federal sector case precedent has 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).

With regard to claim 3, we find that documenting complainant as AWOL

related to a term of her employment. Therefore, we find that complainant

is an aggrieved employee and has stated a cognizable claim as to claim 3.

The agency reasoned that complainant was not harmed because the mistake

of marking her AWOL was rectified and complainant was paid for the date

of October 17, 1998. The agency in effect argues that claim 3 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.

Complainant has requested an award of compensatory damages.

The Commission has held that an agency must address the issue of

compensatory damages when a complainant shows objective evidence that

she has incurred compensatory damages, and that the damages are related

to the alleged discrimination. Jackson v. United States Postal Service,

EEOC Appeal No. 01923399 (November 12, 1992), req. for recons. den.,

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. United States Postal Service, EEOC

Appeal No. 01930696 (December 9, 1993). Because complainant requested

compensatory damages, 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 Allen v. United States Postal Service, EEOC Request No. 05970672

(June 12, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422

(December 3, 1993). We find that in light of complainant's request for

compensatory damages, claim 3 is not moot.

Complainant also claimed that she was discriminated against when her

supervisor was reassigned into the supervisory position; her supervisor

paged only her all night; and her supervisor told her that he was

going to send the reference card to her supervisor on her new tour.

The record indicates that at least part of this complaint was interpreted

as a claim of harassment. Assuming arguendo that complainant intended

her complaint to state a claim of harassment, we find that claims 1, 2,

and 4 even in conjunction with the remanded claim 3 are not sufficiently

severe or pervasive to constitute harassment. We find that claims 1,

2, and 3 were properly dismissed pursuant to �1614.107(a)(1).

CONCLUSION

The agency's dismissal of the portion of the subject complaint concerning

claims 1, 2, and 4 is hereby AFFIRMED. The agency's dismissal of claim

3 is hereby REVERSED and REMANDED for further processing pursuant to

the ORDER herein.

ORDER

The agency is ordered to process the remanded claim (Claim 3) in

accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge

to the complainant that it has received the remanded claim (Claim 3)

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 (K0900)

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)(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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (T0900)

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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 15, 2000

__________________

Date