Charles Mosely, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 18, 2003
01A24240_r (E.E.O.C. Mar. 18, 2003)

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01A24240_r

03-18-2003

Charles Mosely, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Charles Mosely v. United States Postal Service

01A24240

March 18, 2003

.

Charles Mosely,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A24240

Agency No. 1G-772-0010-02

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision dated July 8, 2002, dismissing a consolidated 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.

The agency consolidated two complaints, filed on March 1, 2002 (Agency

No.1G-772-0010-02), and April 7, 2002 (Agency No. 1G-772-0013-02).

The agency indicated that the consolidated complaint would be identified

by agency No. 1-G-772-0010-02. The agency determined that in the

consolidated complaint, complainant alleged that he was discriminated

against on the bases of disability and in reprisal for prior EEO

activity when:

On January 3, 2002, complainant was placed on restricted sick leave and

was being deprived of employment opportunities, which adversely affected

his status as an employee because he is a veteran with disabilities

(Agency No. 1G-772-0010-02).

On January 11, 2002, complainant was issued a Letter of Warning (LOW)

for failure to maintain a regular schedule (Agency No. 1G-772-0013-02).

The agency dismissed both claims for failure to state a claim.

Regarding claim (1), the agency determined that complainant had been

removed from the restricted sick leave list on March 1, 2002, and that

he failed to identify any specific incidents where he was deprived

employment opportunities. Regarding claim (2), the agency found that

the LOW had been reduced to a discussion on February 24, 2002.

Concerning the matter relating to complainant's restricted sick leave in

claim (1), the record indicates that complainant was placed on restricted

sick leave on January 3, 2002, and that the restrictions were removed by

letter dated March 1, 2002. Although the sick leave restrictions were

eventually removed by letter dated March 1, 2002, complainant claimed

compensatory damages for the period beginning on January 3, 2002, that

the restrictions were in force.

Upon review, the Commission finds that although the agency dismissed

the matter raised in claim (1) relating to restricted sick leave

for failure to state a claim, that issue is more properly analyzed

in terms of whether it has been rendered moot. EEOC Regulation 29

C.F.R. 1614.107(a)(5) provides that an agency shall dismiss a complaint

that is moot. A complaint is moot and a person is no longer aggrieved

when it can be said with assurance that there is no reasonable expectation

that the alleged violation will recur, and the interim relief or events

have completely and irrevocably eradicated the effects of the alleged

violation. When both conditions are satisfied, neither party has a legal,

cognizable interest in the final determination of the under lying question

of fact and law. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).

We find that the restricted sick leave matter raised in claim (1) is not

moot because, at a minimum, complainant requested compensatory damages

in his formal complaint. The Commission has held that an agency must

address the issue of compensatory damages when a complainant has presented

objective evidence that he incurred compensatory damages and that the

damages were related to the alleged discrimination. See Jackson v. USPS,

EEOC Appeal No.01923399 (November 12, 1992); request to reconsider

denied, EEOC Request No. 05930386 (February 11, 1993). Consequently,

where, as here, a complainant requests compensatory damages during the

processing of the complaint, the agency is obligated to request from

the complainant objective evidence of such damages. The agency did not

request objective evidence of compensatory damages from complainant,

and improperly dismissed the claim.

With respect to the remainder of claim (1), relating to denial of

employment opportunities, the Commission determines that this matter

was properly dismissed for failure to state a claim. Complainant has

not identified any specific incidents wherein he was deprived employment

opportunities. See Hamilton v. Department of the Treasury, EEOC Appeal

No. 01A03706 (August 3, 2000); request to reconsider denied, EEOC Request

No. 05A01256 (November 15, 2000).

Finally, the Commission determines that claim (2) was properly dismissed.

The record shows that complainant's January 11, 2002 LOW was reduced to

an official discussion on February 24, 2002, by a grievance settlement.

The Commission has held that official discussions alone do not render

an employee aggrieved. See Miranda v. United States Postal Service,

EEOC Request No. 05920308 (June 11, 1992); Devine v. United States

Postal Service, EEOC Request Nos. 05910268, 05910269 and 05910270

(April 4, 1991). As we find no claim by complainant that the LOW or

discussion was recorded in any personnel or supervisory files, nor that

it can be used as a basis for any subsequent disciplinary action, claim

(2) was correctly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).

Accordingly, the agency's dismissal of claim (2) is AFFIRMED. The

agency's dismissal of the portion of claim (1) relating to denial of

employment opportunities is also AFFIRMED. The agency's dismissal of

the portion of claim (1) relating to restricted sick leave is REVERSED,

and that claim is REMANDED to the agency for further process in accordance

with this decision and the Order below.

ORDER (E0900)

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

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claim 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 (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

March 18, 2003

__________________

Date