Frankie Villarreal, Jr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 13, 2009
0120092961 (E.E.O.C. Nov. 13, 2009)

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

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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