0120092500
11-10-2009
James O. Butler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James O. Butler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092500
Agency No. 4H-370-0016-09
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 30, 2009, dismissing his formal 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
Complainant is employed by the agency as a city carrier at its station
in Memphis, Tennessee. Complainant filed the instant formal complaint
on January 14, 2009. Therein, complainant claimed that he was subjected
to discrimination on the basis of religion when:
1. On October 31, 2008, the agency denied complainant's request for
advance leave to attend religious training from November 3 - 7, 2008
and subsequently charged complainant with 40 hours of AWOL because he
did not report to work on those days;
2. On October 31, 2008, complainant was placed off the clock and escorted
out of the building by agency police;1 and
3. On January 13, 2009, the agency issued complainant a Letter of
Warning.
On April 30, 2009, the agency issued a final decision. Therein,
the agency dismissed complainant's formal complaint in its entirety,
pursuant to 29 � C.F.R. 1614.107(a)(1), for failure to state a claim.
Specifically, the agency stated that complainant had not sufficiently
alleged that he was "aggrieved." The agency noted that on February
17, 2009, the charge of AWOL was resolved, through a Step A Grievance
Settlement. The agency noted further that also on February 17, 2009,
the Letter of Warning was reduced to an official discussion. The instant
appeal followed.
After careful review of the record, we conclude that the agency
improperly dismissed the complaint for failure to state a claim.
The claims concerning the charge of AWOL and the Letter of Warning,
which arose directly from the October 31, 2008 incident, clearly involve
adverse employment actions and are more properly analyzed by examining
whether the grievance resolution regarding the letter and the AWOL charge
rendered these matters moot.
EEOC Regulation 29 C.F.R. �1614.107(a)(4) provides that the agency shall
dismiss a complaint that is moot. To determine whether the issues raised
in complainant's complaint remain in dispute, it must be ascertained (1)
if it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur, and (2) if the interim relief or
events have completely and irrevocably eradicated the effects of the
alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625
(1979). 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 continues to
work for the agency in the same position. 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.
In addition, the second prong has not yet been met. The final agency
decision states that complainant's claims were resolved when a Step A
Grievance Settlement on February 17, 2009 reduced the Letter of Warning
to an official discussion and adjusted the 40 hours of AWOL to 40 hours
of annual leave. However, if discrimination was established, complainant
may be entitled to compensatory damages, which he specifically requested
for alleged emotional and mental pain and suffering. The agency did
not expressly address the issue of compensatory damages in its final
decision and, therefore, the record does not establish that interim
relief has eradicated all effects of the alleged discrimination, a
finding necessary to dismiss the complaint for mootness.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED. The complaint is hereby REMANDED to the agency
for further processing in accordance with this decision and the ORDER
below.
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
November 10, 2009__
Date
1 The record reflects that the agency placed complainant off the clock and
had police escort him out of the building because complainant purportedly
was upset about the agency's denial of his request for the advance
leave that was addressed in claim 1.
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2
0120092500
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092500
6
0120092500