0120092823
12-03-2009
Carl R. Hord, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Carl R. Hord,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120092823
Agency No. 4K230004809
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 2, 2009, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of race (White)
and physical disability when from December 17, 2008 through February 9,
2009, the agency failed to accommodate his disability by refusing to
allow complainant to take his lunch break at the end of his shift or
not take a lunch break at all.
A fair reading of the complaint indicates that complainant is alleging
that the agency refused to honor the recommendations of his physician that
he be permitted to take his 30 minute lunch break at the end of his shift
or not to take a break at all as an accommodation for his disability.
In its final decision dated June 2, 2009, the agency dismissed the
matter for failure to state a claim; arguing that the issue was settled
in February 2009 through the agency's negotiated grievance process.
As such, the agency dismissed complainant's complaint in accordance
with EEOC Regulation 29 C.F.R. � 1614.107(a)(1). However, on appeal,
the agency concludes that the February 2009 grievance decision rendered
complainant's complaint moot and asks the Commission to affirm its
dismissal of the instant matter in accordance with EEOC Regulation 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 Commission determines that the instant complaint has not been
rendered moot because, at a minimum, complainant requested $3,500 in
compensatory damages. We have held that an agency must address the issue
of compensatory damages when the complaint presented objective evidence
that he incurred compensatory damages and that the damages were related to
the alleged discrimination. See Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992); request to reopen denied,
EEOC Request No. 05930386 (February 11, 1993). Consequently, where as
here, a complainant requests compensatory damages during the processing
of a complaint, the agency is obliged to request from the complainant
objective evidence of such damages. In this case, the agency did not
request objective evidence of compensatory damages from complainant.
Should complainant prevail in his claim, the possibility of an award
of compensatory damages exists, and complainant's claim is not moot.
See Glover v. United States Postal Service, EEOC Appeal No. 01930696
(December 6, 1993).
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby 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 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
December 3, 2009
__________________
Date
2
0120092823
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092823