0120101191
06-22-2010
Charles Reynolds, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Charles Reynolds,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120101191
Agency No. 4K230001810
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 4, 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 discriminated against
based on his race (Black) when by notice dated October 13, 2009, he
was placed on emergency off-duty status without pay effective October
2, 2009. As relief, Complainant requested compensatory damages and
attorney's fees.
Complainant filed a grievance. A November 3, 2009, Step B decision
rescinded the emergency placement in off duty status effective October
6, 2009, and returned Complainant to duty immediately (but no later than
November 14, 2009), with back pay from October 6, 2009, until he returned
to work. According to the counselor's report, Complainant returned to
work on November 13, 2009. On December 8, 2009, Complainant filed the
instant complaint.
The Agency dismissed the complaint for failure to state a claim.
It reasoned that in light of the grievance decision which restored
Complainant's loss of pay, he was not aggrieved.
CONTENTIONS ON APPEAL
Complainant contends that from October 2, 2009, to the grievance decision
on November 3, 2009, he was without a job and income and did not know
his fate. He writes this was extremely stressful and that he suffered
severe anxiety which necessitated medical attention and medication.
In opposition to the appeal, the Agency argues its final decision was
correctly decided. In reply to the opposition, Complainant argues that
he has not been paid his lost wages.
ANALYSIS AND FINDINGS
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.
Here, Complainant contends that he has not received the back pay to
which he is entitled during the period he was in emergency off-duty
status without pay. The Agency does not contest this. Accordingly,
his complaint is not moot.
The Commission has held that an Agency must address the issue of
compensatory damages when a complainant shows objective evidence
that he 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), request
for reconsideration denied, 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).
As the Agency failed to address the issue of compensatory damages, we find
that dismissal on the grounds that it was rendered moot was improper.
See Rouston v. National Aeronautics and Space Administration, EEOC
Request No. 05970388 (March 18, 1999).
Accordingly, the Agency's final decision is REVERSED.
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
2
0120101191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101191