0120063813
10-31-2006
Cedric Simpson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cedric Simpson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200638131
Agency No. 4H-300-0076-06
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 22, 2006, dismissing his formal complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
Complainant initiated EEO Counselor contact on February 7, 2006.
Informal efforts to resolve his concerns were unsuccessful. In his
formal complaint, filed on May 4, 2006, complainant alleged that he was
subjected to discrimination on the basis of a perceived disability.
In its final decision dated May 22, 2006, the agency determined that
complainant's complaint was comprised of the following claim.
On or about December 3, 2005, [complainant's] request to return to work
on light duty was denied.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. The agency stated that complainant contacted
an EEO Counselor more than 45 days after the alleged discriminatory
incident. Specifically, the agency stated that "[complainant's] complaint
suggests that on or about December 3, 2005, [complainant] submitted a
request for light duty that was disapproved by management. Evidence
of record indicates that [complainant] contacted an EEO Counselor on
February 7, 2006...Thus, [complainant] is untimely in initiating [his]
complaint on this claim by 21 days."
Complainant, through his attorney, filed a brief in support of his appeal
on July 27, 2006. However, the Commission finds that complainant's brief
is untimely. Specifically, the Commission, via letter dated July 18,
2006, informed complainant's attorney that it had granted complainant's
request for an extension to submit his brief until July 26, 2006. Thus,
complainant's brief filed on July 27, 2006, is untimely and we decline
to address it herein.
In response to complainant's appeal, the agency requests that we affirm
its final decision dismissing complainant's complaint. The agency
asserts that the personnel action at issue is a discrete act and not a
continuing violation. In addition, the agency for the first time asserts
that complainant's complaint should also be dismissed for failure to state
a claim. Specifically, the agency, in response to complainant's appeal,
asserts that "the report of counseling contains a Step B grievance
decision dated April 3, 2006. This decision grants [complainant] a
make whole remedy for all wages and benefits lost during the time he
was out of work due to his light duty being denied on December 2, 2005.
Based on this make whole decision, [complainant's] complaint fails to
state a claim..."
The agency improperly dismissed complainant's complaint on the grounds
of untimely EEO Counselor contact. The record reflects that complainant
is alleging that the agency continuously refused to return him to work.
Specifically, in an attachment to his formal complaint, complainant
stated that "on or about December 3, 2005, through the instant date,
[named agency officials] have refused to allow [c]omplainant to return to
work in a light duty status due to a perceived disability..." (emphasis
added). The Commission has stated that "[r]epeated occurrences of
the same discriminatory employment action...can be challenged as long
as one discriminatory act occurred within the charge filing period."
See Threshold Issues, EEOC Compliance Manual, at 2-73 (revised July 21,
2005). Based on these circumstances, we find that the agency improperly
dismissed complainant's complaint for untimely EEO Counselor contact.
For the first time in response to complainant's appeal, the agency
asserts that complainant's complaint should be dismissed for failure
to state claim based on a grievance decision. However, the Commission
determines that the instant complaint 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 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 contains a copy of a Step B Grievance Decision dated April 3,
2006. Therein, the issue of the grievance decision is whether the agency
violated the collective bargaining agreement when it denied complainant's
request for light duty. The grievance decision provides that complainant
should be re-credited with sick leave and annual leave he used between
December 2, 2005, and "the time that his medical restrictions changed."
The decision also provides that complainant should receive back pay for
all of the hours of "LWOP that he has been charged between [December 2,
2005], and the time that his medical restrictions changed."
However, we note that the record does not contain documentation that
complainant was actually re-credited with the sick leave and annual
leave he used during the period of issue. In addition, the record
does not contain documentation that complainant actually received
back pay for the period at issue. Moreover, the record reflects that
complainant requested compensatory damages in his formal complaint.
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).
As the agency failed to address the issue of compensatory damages, we
find that dismissal on the grounds that it was rendered moot would be
improper. See Rouston v. National Aeronautics and Space Administration,
EEOC Request No. 05970388 (March 18, 1999).
Accordingly, we REVERSE the agency's final decision dismissing
complainant's complaint and we REMAND this matter to the agency for
further processing in accordance with the ORDER below.
ORDER (E0900)
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 (K0501)
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)
(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 (M0701)
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 (R0900)
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 (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
10/31/2006
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120063813
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120063813