0120092219
06-18-2010
Michael A. Russo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Michael A. Russo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120092219
Agency No. 4H-320-0039-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated April 13, 2009, dismissing his 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. Upon review, the Commission finds that Complainant's
complaint was improperly dismissed for failure to state a claim.
In his complaint, Complainant alleged that he was subjected to
discrimination on the bases of sex (male) and disability (back) when:
1. On December 10, 2008, Complainant was told to deliver mail or go home,
which was allegedly a violation of his medical instructions; and
2. On December 10, 2008, the manager discussed Complainant's medical
condition with another employee.
The Agency dismissed the complaint for failure to state a claim.
It determined that claim 1 was resolved on January 29, 2009, during a
negotiated grievance procedure; therefore, Complainant was not aggrieved.
The Agency further concluded that claim 2 was never brought to the
attention of an EEO Counselor and, thus, could not be admitted. Lastly,
the Agency determined that the totality of the actions discussed in
the complaint were not sufficiently severe or pervasive to rise to the
level of a hostile work environment. On appeal, Complainant makes no new
assertions. Complainant requests that we overturn the Agency's dismissal.
The Agency requests that we affirm the dismissal.
Although the Agency dismissed Complainant's claim for failure to state a
claim, we find that this claim is more properly analyzed as to whether
it has been rendered moot. 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 trier of fact 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.
In the instant case, the record shows that Complainant filed a grievance
on December 10, 2008, regarding the matter alleged in claim 1. A
settlement was reached on January 29, 2009, which resulted in payment for
the time during which Complainant was sent home. While Complainant's pay
and time were corrected, the record reflects that Complainant requested
compensatory damages during EEO counseling and in his formal complaint.
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective 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 for reconsideration
denied, EEOC Request No. 05930306 (February 1, 1993). Because Complainant
requested compensatory damages, the Agency should have requested
that Complainant provide some objective proof of the alleged damages
incurred, as well as objective evidence linking those damages to the
adverse actions at issue. See Allen v. United States Postal Service,
EEOC Request No. 05970672 (June 12, 1998); Benton v. Department of
Defense, EEOC Appeal No. 01932422 (December 3, 1993). If Complainant
were to prevail, the possibility of an award of compensatory damages
exists; therefore, though a settlement was reached and payment was made,
Complainant's complaint is not moot. See Glover v. United States Postal
Service, EEOC Appeal No. 01930696 (December 9, 1993).
Regarding claim 2, the regulation set forth in 29 C.F.R � 1614.107(a)(2)
provides that an agency shall dismiss a complaint that raises a matter
that has not been brought to the attention of an EEO Counselor and is
not like or related to a matter that has been brought to the attention
of an EEO Counselor. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to or
clarifies the original complaint and could have reasonably been expected
to grow out of the original complaint during the investigation. See
Scher v. United States Postal Service, EEOC Request No. 05940702 (May 30,
1995); Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990). We note that a review of the record reveals no evidence
that the matter in dispute in claim 2 was brought to the attention of
the EEO Counselor during counseling, nor is the matter raised in claim
2 like or related to the
matter that was raised during counseling, being sent home when no work
was available. Therefore, we find that the Agency properly dismissed
claim 2.
Accordingly, upon review of the record and for the foregoing reasons,
the Agency's final decision is AFFIRMED in part and REVERSED in part. The
issue of compensatory damages is REMANDED for further processing in
accordance with the Order set out below.
ORDER (E0900)
The Agency is ordered to process the remanded claims in accordance with 29
C.F.R. � 1614.108. The Agency shall acknowledge to 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 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 (K0900)
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, D.C. 20036. The Agency's report must contain supporting
documentation, and the Agency must send a copy of all submissions to
Complainant. If the Agency does not comply with the Commission's order,
Complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). 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,
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 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 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 (T0900)
This decision affirms the Agency's final decision in part, but it also
requires the Agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the Agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
June 18, 2010______________
Date
2
0120092219
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092219