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

Equal Employment Opportunity CommissionMay 21, 2009
0120090925 (E.E.O.C. May. 21, 2009)

0120090925

05-21-2009

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.

Appeal No. 0120090925

Hearing No. 443-2008-00078X

Agency No. 4J-530-0004-08

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity

Commission (EEOC or Commission) from the agency's final order

dated November 12, 2008, fully implementing the decision of an EEOC

Administrative Judge (AJ) to dismiss his complaint of unlawful employment

discrimination in violation of Section 501 of the Rehabilitation Act of

1973, 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.

In his complaint, complainant alleged that he was discriminated against

based on his disability (left hand/arm), age (59), and reprisal for prior

protected EEO activity when on September 26, 2007, he was not selected

for a promotion to the position of lead automotive technician, Level 8.

Following an investigation, complainant requested a hearing before an

EEOC AJ.

While this case was pending before an AJ, the AJ adjudicated complainant's

prior complaint alleging discrimination when on or about August 13,

2005, he was not selected for promotion to the above position. On July

16, 2008, the AJ found discrimination thereon.1 On October 3, 2008,

the parties settled in writing all litigation on this earlier claim.

The agency agreed to provide complainant "make whole relief" as set

forth in the AJ's decision dated July 16, 2008; to pay him back pay and

other benefits as if he was selected for lead automotive technician,

level 8, effective August 13, 2005, with all career ladder promotions,

step increases, and other upgrades to which he would be entitled if he

performed fully successfully; to promote complainant to the position of

lead automotive technician, Level 9; and to pay $3,500 in compensatory

damages and $30,000 in attorney fees. The settlement agreement explicitly

did not resolve the instant complaint before us.

Thereafter, the agency filed a motion with the AJ to dismiss the instant

complaint. It argued that the two complaints about complainant not

being selected for the position of lead automotive technician, level 8,

on August 13, 2005, and September 26, 2007, stated the same claim, and

the AJ already ordered the agency to offer promote complainant to lead

automotive technician, level 8. In response to the agency's motion to

dismiss, complainant argued the complaints were not identical because

they involved two separate non-promotions, and his stress increased.

On October 31, 2008, the AJ dismissed the complaint for being moot.

Recounting the two claims referencing the July 16, 2008 decision, the

AJ reasoned that complainant had already been granted make whole relief

for the damages he suffered. The agency then issued a final action

implementing the AJ's decision.

On appeal, complainant argues that his previous complaint does not

encompass the later complaint, and he suffered additional pain and

suffering for which he has not been compensated. In response to

complainant's appeal, the agency argues that it correctly implemented

the AJ's decision of mootness.

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 issues raised in complainant's complaint are

moot, the factfinder 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.

The first prong above has been met. But we disagree that interim relief

or events have completely and irrevocably eradicated the effects of the

alleged discrimination. The AJ's July 16, 2008, decision on the first

non-promotion ordered make whole relief, and this was reaffirmed in the

settlement agreement. Arguably, complainant is not entitled to additional

make whole equitable relief (back pay) for the second non-promotion

because the back pay periods for both non-promotions would cease at

the same time, i.e., when complainant started working as a level 9,

and the back pay period on the first non-promotion started earlier.

However, complainant requested compensatory damages for the second

non-promotion. For the first non-promotion, the parties agreed to the

payment of $3,500 in compensatory damages via a settlement agreement

which explicitly did not resolve the instant complaint.

Where a complainant has requested compensatory damages, they must be

addressed by the agency. See Routson v. National Aeronautics and

Space Administration, EEOC Request No. 05970388 (March 18, 1999).

Should complainant prevail on the instant complaint, the possibility

of an award of compensatory damages exists. See Glover v. United

States Postal Service, EEOC Appeal No. 01930696 (December 9, 1993).

Complainant could suffer additional compensatory damages for a second

discriminatory non-promotion.

As the agency failed to address the issue of compensatory damages

for the instant complaint, we find that the dismissal for mootness

was improper.

ORDER

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

Field or District Office a request 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.

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

May 21, 2009

__________________

Date

1 The record does not contain a copy of the AJ's decision. According to

complainant, the AJ's finding of discrimination was based on age and

reprisal.

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0120090925

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090925