Bobby Collins, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionJun 22, 2010
0120101672 (E.E.O.C. Jun. 22, 2010)

0120101672

06-22-2010

Bobby Collins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Bobby Collins,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 0120101672

Agency No. 4G770009910

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated January 16, 2010, dismissing his 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.

BACKGROUND

In his complaint, Complainant alleged that he was subjected to

discrimination on the basis of reprisal for prior protected EEO activity1

when, management entered Complainant's absence form work as Leave Without

Pay (LWOP) for December 10 and 11, 2009.

The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim and to 29 C.F.R. � 1614.107(a)(5) for

mootness. The Agency noted that initially Complainant was listed as

LWOP status for December 10 and 11, 2009. However, once management

received Complainant's documentation, the status was corrected and

Complainant received the corrected pay. As such, the Agency determined

that Complainant failed to show he was harmed. Further, to the extent

Complainant established a harm, the Agency held that management corrected

the harm. The Agency noted that Complainant has not provided any evidence

or argument regarding his request for compensatory damages during the

pre-complaint process.

Complainant appealed arguing that he in fact stated a claim and that the

matter was not moot. The Agency requested that the Commission affirm

its decision.

ANALYSIS AND FINDNIGS

The regulation set forth 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,

.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. Dept. of the Air Force, EEOC Request No. 05931049

(April 21, 1994).

Upon review, Complainant alleged that he was placed on LWOP status

on December 10 and 11, 2009. Because of being placed in LWOP status,

Complainant was not paid for the leave he took on the days in question.

Clearly Complainant has stated an actionable claim. Therefore, we find

that the Agency's dismiss based pursuant to 29 C.F.R. � 1614.107(a)(1)

was not appropriate.

The Agency also dismissed the matter pursuant to 29 C.F.R. �

1614.107(a)(5). 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 record shows that management did correct Complainant's LWOP

status and Complainant was paid for the dates in question. However,

Complainant has alleged that he has incurred compensatory damages due

to the Agency's conduct, we can not find that the effects of the alleged

discrimination have been completely and irrevocably eradicated. When, as

here, a complainant requests compensatory damages during the processing

of a complaint, the agency is obliged to request from that complainant

objective evidence of such damages. The Agency asserted the Complainant

had the opportunity to provide support for his claim for compensatory

damages during the pre-complaint process but failed to do so. We reviewed

the record and found no evidence that Complainant was asked to provide

or support his claim for compensatory damages by the Agency during the

pre-complaint process. As such, we find that this claim is not moot. See

Glover v. U.S. Postal Serv., EEOC Appeal No. 01930696 (December 9, 1993).

CONCLUSION

Accordingly, we REVERSE the Agency's final decision dismissing the

complaint and REMAND the matter for further processing in accordance

with the ORDER below.

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with

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 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 (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

June 22, 2010

__________________

Date

1 The record indicates that complainant filed a previous EEO complaint;

however there is no information as to which statute she alleged was

violated.

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2

0120101672

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120101672