John L. Reid, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (New York Metro Area), Agency.

Equal Employment Opportunity CommissionAug 25, 2000
01992856 (E.E.O.C. Aug. 25, 2000)

01992856

08-25-2000

John L. Reid, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (New York Metro Area), Agency.


John L. Reid v. United States Postal Service (New York Metro Area)

01992856

August 25, 2000

.

John L. Reid,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(New York Metro Area),

Agency.

Appeal No. 01992856

Agency No. 1A073001398

DECISION

John L. Reid (complainant) filed a timely appeal with this Commission

from a final agency decision (FAD) dated January 29, 1999 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.<1> In his complaint, complainant alleged that

he was subjected to discrimination on the basis of disability (lumbar

herniated disk) when, on November 11, 1997, he was notified of his

removal for being continually absent from work without official leave

(AWOL) and for failing to respond to official correspondence requesting

documentation of these absences.<2>

The agency dismissed the complaint pursuant to EEOC Regulation 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �� 1614.107(a)(1), (a)(5) and (a)(7)). First, the

agency noted that the removal was unilaterally reduced to a Notice of

a Seven (7) Day Suspension and then was reduced, per a Step 2 grievance

decision, to an official discussion on May 1, 1998. Complainant received

back pay for the period of suspension, which he had already served.

The agency concluded that complainant was therefore not aggrieved.

Second, the agency concluded that the complaint was moot because there

was no reasonable expectation that the Seven (7) Day Suspension would

recur and complainant was compensated for all lost wages, completely and

irrevocably eradicating the effects of the alleged violation. Third,

the agency found that complainant failed to respond to its request for

evidence supporting his compensatory damages claim, despite its warning

that failure to respond could result in the dismissal of his complaint.

The record reveals that the agency issued a letter on December 3,

1998, asking complainant to identify the damages he was seeking and

provide evidence linking those damages to the adverse actions at issue.

Complainant failed to respond to this letter within 15 days. The agency

determined that this justified dismissing his complaint.

On appeal, complainant details the circumstances surrounding the removal

action and the subsequent decision to reduce the to a suspension and then

to an official discussion. He argues that his supervisor issued the

suspension on May 13, 1998, despite the fact that a May 1, 1998 letter

indicated that the suspension had already been reduced to an official

discussion. He also contends that he did not receive the December 3,

1998 letter requesting information about his damages. In response to

the agency's contention that an individual named �Daniel Reid� signed

for the December 3, 1998 letter, as evidence by a return receipt card,

complainant contends that no one by that name is in his family or has

authority to receive mail for him.

The agency argues that it never received a copy of complainant's appeal

or appeal statements and asks that its FAD be affirmed.

FINDINGS AND ANALYSIS

As an initial matter, a review of the complaint file reveals that the

statement submitted by complainant on appeal was mailed to the agency

and received on February 26, 1999, three days after the statement was

received by the Commission. Although this statement is not labeled

�appeal� or �appeal brief,� it does ask for reconsideration, setting

forth complainant's objections to the FAD. In these circumstances,

we find complainant's failure to inform the agency that the statement

he sent them was his appeal statement to be harmless error. The agency

was not deprived of a meaningful right of response, as it was aware of

complainant's arguments in opposition to its FAD within a few days of

complainant's appeal.

Moreover, this complaint does state a claim. EEOC Regulation 29 C.F.R. �

1614.107(a)(1) provides, in relevant part, that an agency shall dismiss

a complaint, or portion thereof, that fails to state a claim. An agency

shall accept a complaint from any aggrieved employee or applicant for

employment who believes that he or she has been discriminated against

by that agency because of race, color, religion, sex, national origin,

age or disabling condition. 29 C.F.R. � 1614.103; � 1614.106(a).

The Commission's federal sector case precedent has long defined an

"aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. See Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

The only proper questions in determining whether an allegation is

within the purview of the EEO process are: (1) whether the complainant

is an aggrieved employee; and (2) whether he has alleged employment

discrimination covered by the EEO statutes. An employee is "aggrieved"

if he has suffered direct and personal deprivation at the hands of

the employer. See Hobson v. Department of the Navy, EEOC Request

No. 05891133 (March 2, 1990). Here, although the agency contends that

the removal was reduced to an official discussion, complainant notes

that he was required to serve the suspension even after it was reduced

to an official discussion, causing harm to his financial standing, since

he did not receive back pay until several weeks later. The dismissal

for failure to state a claim was therefore improper.

We also note that this complaint is not moot. While the agency states

that there is no reasonable expectation that the alleged violation

will recur, it provides no support whatsoever for this contention.

It appears from the record that complainant's supervisor issued the

suspension despite his knowledge that the suspension was reduced to

an official discussion. This fact indicates that similar actions are

reasonably likely to occur in the future. Moreover, the agency does

not state that the records of the proposed removal or the suspension

were removed from complainant's personnel file, nor is there evidence

that this occurred. See Harrison v. United States Postal Service, EEOC

Appeal No. 01970533 (October 22, 1999) (complaint not moot where agency

has failed to establish that record of discipline had been expunged from

complainant's personnel file). Thus, the agency's unsupported contention

that there is no reasonable expectation that the alleged violation will

recur is insufficient to satisfy the first prong of the mootness test.

Furthermore, in complainant's formal complaint, under the section

labeled �Corrective Action sought,� complainant noted that the receipt

of a removal notice right before Christmas caused great stress and

pain to his family and to himself. This constitutes a request for

compensatory damages. See Haynes v. United States Postal Service,

EEOC Request No. 05920891(December 14, 1993) (complainant need not use

legal terms of art such as �compensatory damages,� but merely must

use some words or phrases to put the agency on notice that either

a pecuniary or non-pecuniary loss has been incurred); see also Park

v. United States Postal Service, EEOC Appeal No. 01931280 (December 7,

1993); Banks v. Department of the Interior, EEOC Request No. 05920680

(March 4, 1994).

The Commission has held that an agency must address the issue of

compensatory damages, and not dismiss the complaint as moot, when a

complainant shows 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 to reopen denied, EEOC Request No. 05930306 (February

1, 1993); Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993).

Here, in response to complainant's request for compensatory damages, the

agency requested that complainant provide proof of the alleged damages

incurred, as well as evidence linking those damages to the adverse actions

at issue, as required by Commission precedent. See Benton v. Department

of Defense, EEOC Appeal No. 01932422 (December 10, 1993). The agency

argues that because complainant failed to respond to this request,

his complaint can also be dismissed for failure to cooperate. We note

however, that as a finding on the merits had not yet been issued when this

request was made, the agency could have continued processing the complaint

without the requested information. In these circumstances, we find

that the dismissal for failure to cooperate based on one unanswered

letter, with questionable evidence of actual receipt by complainant,

was improper.

CONCLUSION

Accordingly, after a careful review of the record, we find the agency's

dismissal of the complaint to be improper and hereby REVERSE the FAD.

The complaint is REMANDED to the agency for further processing in

accordance with this decision and applicable regulations.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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 (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

August 25, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website at www.eeoc.gov.