Leslie G. Yaeger, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 7, 2009
0520090542 (E.E.O.C. Aug. 7, 2009)

0520090542

08-07-2009

Leslie G. Yaeger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Leslie G. Yaeger,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Request No. 0520090542

Appeal No. 0120090925

Agency No. 4J-530-0004-08

DENIAL

The agency timely requested reconsideration of the decision in Leslie

G. Yaeger v. United States Postal Service, EEOC Appeal No. 0120090925

(May 21, 2009). EEOC Regulations provide that the Commission may, in its

discretion, grant a request to reconsider any previous Commission decision

where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

In our prior decision, the Commission found that the agency erred in

implementing the AJ's decision to dismiss the complaint on the grounds

of mootness. The AJ found that a previous complaint, also regarding

the non-selection for promotion to Lead Automotive Technician, which

occurred earlier (on August 13, 2005), was settled and therefore provided

complainant with make whole relief for the damages he suffered even with

respect to the later non-selection for the position in September 2007.

On appeal, however, complainant argued that he suffered additional pain

and suffering with the later non-selection that was not compensated by

the settlement. The Commission found that although complainant requested

compensatory damages for the second non-promotion, the settlement only

provided $3,500 in compensatory damages for the first non-promotion and

did not explicitly resolve the second complaint. Finding that complainant

could suffer additional compensatory damages as a result of the second

non-promotion and that the agency failed to address the issue for the

second non-selection, the Commission remanded the case for a hearing.

In its request, the agency argues that AJ correctly concluded that the

instant complaint was moot "because it sought the same compensatory

damages paid in the first case for the same cause of action."

Specifically, the agency contends that the AJ's make whole relief included

"back pay from August 2005 to the date of the decision July 2008" as well

as "$3,500 in non-pecuniary compensatory damages for the same period as

the back pay period." According to the agency, "[n]o separate period of

time exists for which compensatory damages can be awarded in the second

instant case"; that the time of the second case, July 2007 to July 2008,

is included within the time frame from the first case, August 2005 to

July 2008. The agency asks that the dismissal be affirmed, because it

has already addressed the matter of compensatory damages.

After reconsidering the previous decision and the entire record,

the Commission finds that the request fails to meet the criteria of 29

C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the

request. For the first time, the agency has provided a copy of the AJ's

July 16, 2008 decision, regarding Case No. 4J-530-0133-05, in support of

its belief that compensatory damages in the instant case has already been

considered and resolved. Moreover, as noted in our prior decision, the

settlement agreement language expressly states "this Agreement does not

resolve Complainant's pending EEOC complaint, Agency No. 4-J-530-0004-08

. . . ." Therefore, the matter of compensatory in the instant case must

be remanded. The decision in EEOC Appeal No. 0120090925 remains the

Commission's decision. There is no further right of administrative

appeal on the decision of the Commission on this request.

ORDER

The agency shall submit to the Hearings Unit of the appropriate EEOC

Field or District Office a req2uest for a hearing within fifteen (15)

calendar days after this decision becomes final. The hearing request

must include a brief explanation that it is being made pursuant to

this decision, and be accompanied with the complaint, investigative

files, and hearing record, and a copy of this decision. Thereafter,

an Administrative Judge shall issue a decision on the complaint in

accordance with 29 C.F.R. � 1614.109 and the agency shall issue a

final action in accordance with 29 C.F.R. � 1614.110.

The agency shall provide a copy of the hearing request to the Compliance

Officer at the address set forth below, with a copy to complainant.

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.

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

August 7, 2009

__________________

Date

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0520090542

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0520090542