0120092961
11-13-2009
Frankie Villarreal, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frankie Villarreal, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092961
Agency No. 4G-780-0098-09
DECISION
Complainant filed a timely appeal with this Commission from the
agency's final decision dated June 1, 2009, dismissing his 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On March 8, 2009, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination on
the bases of disability and age when:
on or around December 19, 2008, he was issued a Letter of Warning for
failure to be regular in attendance, for absences he alleged were related
to his VA service-connected disability and for which he asserted he had
approved leave.
On June 1, 2009, the agency issued a final decision dismissing the
instant complaint for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1). Specifically, the agency determined that complainant
failed to allege that he suffered harm to a term, condition or privilege
of his employment. The agency noted that the Letter of Warning (LOW)
was addressed through a Step A Grievance procedure in which it was
determined that the LOW would remain in effect until April 10, 2009 and
that complainant's "VA service-connected disability documentation that
is protected will not be part of [his] attendance record."
On appeal, complainant, through his attorney, argues that the actions of
the agency caused him emotional distress "which is no less an injury from
intentional conduct than other losses that might otherwise be quantified.
For example, even though the discipline imposed against the complainant
was later removed, the impact of the prolonged harassment left its mark
on complainant."
After careful review of the record, we conclude that the agency
improperly dismissed the complaint for failure to state a claim.
The issuance of the LOW clearly involves an adverse employment action and
is more properly analyzed by examining whether the grievance resolution
regarding the LOW rendered this claim 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 issue
raised in complainant's complaint are moot, we 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.
In the instant case, the record indicates that complainant still
works in the same position under the same supervisors who issued him
disciplinary action despite having approved leave for ongoing medical
appointments related to a service-connected disability. In essence,
complainant is alleging, among other things, an ongoing failure to
accommodate his disability. Under these circumstances, the first prong
of the mootness analysis has not been established as there remains a
reasonable possibility that the alleged violation will recur. While the
agency has promised in the grievance settlement to no longer count certain
VA disability-related absences on complainant's attendance record, there
appears to be much room for interpretation in this regard and for ongoing
disputes. In addition, the second prong has not been established.
Complainant argues that, if discrimination was established, he would be
entitled to compensatory damages, which he specifically requested in his
complaint. The agency has not addressed this point in its final decision.
Therefore, we conclude that the record does not establish that all the
effects of the alleged discrimination have been eradicated, a finding
necessary to dismiss the complaint for mootness.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and this claim is REMANDED to the agency for
processing in accordance with the following ORDER.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with 29
C.F.R. � 1614.108 et seq. 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
November 13, 2009
__________________
Date
2
0120092961
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092961
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