01a61177
05-09-2006
John O. Harris, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
John O. Harris v. Department of Transportation
01A61177
May 9, 2006
.
John O. Harris,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A61177
Agency No. DOT 2005-19841-FAA-05
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision dated November 14, 2005, dismissing his formal
EEO 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On August 11, 2005, complainant initiated contact with an EEO Counselor.
Complainant indicated that in June 2004, while on duty he was injured
and was placed on workers' compensation, and that he underwent several
surgeries. Complainant indicated that on May 31, 2005, his surgeon
examined him and told him that he could return to work. Tthe surgeon
completed a Department of Labor �Work Capacity Evaluation� form stating
that the only limitations complainant had while completing physical
therapy were no squatting or lifting more than 50 pounds. Complainant
indicated that when a workers' compensation case manager contacted
complainant's supervisor to see whether complainant could return to work,
his supervisor indicated he would not allow complainant to return to
work with any physical limitations. Complainant stated that he eventually
returned to work and dealing with his supervisor had become very difficult
due to his ongoing harassment. Informal efforts to resolve the matter
were unsuccessful.
On October 26, 2005, complainant filed a formal complaint, claiming that
he was the victim of unlawful employment discrimination on the bases of
disability and in reprisal for prior protected activity. In his formal
complaint, complainant stated that his position was placed on bid while he
was hospitalized and recovering from surgery. Specifically, complainant
stated that he had sustained a job-related injury and was �on Workmans
Compensation� when he learned that his job was �bid out.� Complainant
stated that his supervisor informed him that the bid was made solely
for the purpose of �contingency planning.� Complainant stated further
that he was going to return to work, but that the position was filled.
Complainant indicated that during his absence from work, complainant's
supervisor asked complainant on various occasions if he could perform
the duties of riding on an EMB 145 jump seat, and that complainant
indicated that he could do so. One of complainant's requested remedies
was a �monetary award.�
On November 14, 2005, the agency issued the instant final decision.
Therein, the agency determined that complainant's complaint was comprised
of the following claim:
Were you discriminated against because of your physical disability and/or
in reprisal for your prior participation in protected activity when, on
approximately July 15, 2005, your supervisor improperly directed you to
take leave when you were unable to report to work immediately after being
told by your doctor that you could return to work with no restrictions?
The agency dismissed the complaint on the grounds of mootness. The agency
determined, without further elaboration, that complainant asserted that
the leave he was improperly directed to take had been reinstated.
On appeal, complainant acknowledged that the agency determined that
his formal complaint was comprised of the claim that he was improperly
directed to take leave. However, complainant argues that this matter was
�not the only issue, [but] just one of several instances of retaliation
for my having complained about [his supervisor's] behavior.� Complainant
argues that the agency apparently disregarded other documented instances
of discrimination. Complainant specifically argues that his complaint
was comprised of the matters that his supervisor improperly questioned
his ability to perform his job with his disability, and indicated that
he would be ineligible to hold his position if he could not perform it;
that the supervisor bid out complainant's position while complainant
was absent from work and hired a replacement for him; and that when
complainant informed the supervisor that he was returning to work,
the supervisor attempted to keep complainant from returning.
EEOC Regulation 29 C.F.R.� 1614. 107(a)(5) provides that a complaint may
be dismissed where there is no reasonable expectation that the alleged
violation will recur, and interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation.
As a threshold matter, the Commission determines that complainant's
complaint was not comprised exclusively of the matter identified in the
agency's final decision. Instead, a fair reading of the pre-complaint
documents and complainant's formal complaint, reiterated in complainant's
appellate arguments, reflects that complainant claimed that he was
harassed when he was improperly questioned about his ability to perform
his position after a job-related injury; that his position was placed
on bid during his absence from work; and that complainant's supervisor
attempted to keep complainant from returning to work. The Commission
therefore determines that reinstatement of complainant's leave does
not constitute an interim event that has completely and irrevocably
eradicated the effects of the alleged violation.
Moreover, even if the complaint were comprised exclusively of the matter
identified by the agency in its final decision, it would not be rendered
moot because a fair reading of complainant's formal complaint reflects
that he is requesting compensatory damages as a remedy. An agency must
address the issue of compensatory damages when the complainant presented
objective evidence that she incurred compensatory damages and that the
damages were related to the alleged discrimination. See Jackson v. USPS,
EEOC Appeal No. 01923399 (November 12, 1992); request to reopen denied,
EEOC Request No. 05930386 (February 11, 1993). Consequently, where, as
here, a complainant requests compensatory damages during the processing
of the complaint, the agency is obliged to request from the complainant
objective evidence of such damages. In this case, the agency did not
request objective evidence of compensatory damages from complainant.
Should complainant prevail in his claim, the possibility of an award
of compensatory damages exists, and complainant's claim is not moot.
See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993).
The Commission further determines that because the complaint addresses
the claim that complainant was harassed when his job was put up for bid,
he was questioned repeatedly about his ability to return to work after a
work-related injury, and his supervisor attempted to prevent his return to
work, complainant has alleged a personal loss or harm regarding a term,
condition, or privilege of his employment. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The agency's dismissal of the instant complaint is REVERSED. The
complaint, as defined herein, is REMANDED to the agency for further
processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims 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 (K0501)
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 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 (M0701)
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 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 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 (R0900)
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 of1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within thez soledisiscretion 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
May 9, 2006
__________________
Date