0120093397
12-15-2009
Rafael Campos, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Rafael Campos,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120093397
Agency No. 4G752024809
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 8, 2009, 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. Upon review, the Commission finds that complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
In a complaint dated June 19, 2009, complainant alleged that he
was subjected to hostile workplace discrimination on the bases of
disability (Back) and reprisal for prior protected EEO activity under
the Rehabilitation Act when: on or around April 21, 2009, he was placed
off the clock and was informed that he would be terminated. Complainant
requested compensatory damages as a part of his remedy in this matter.
In its final decision, the agency dismissed complainant's claim,
finding that on May 20, 2009, complainant had resolved this matter at
Step B of the agency's grievance process. In his appeal statement,
complainant expands the scope of his claim beyond what was stated in his
formal complaint but argues that "the relief gained thus far through
the Union has not irrevocably eradicated the effects of the alleged
violations. There are issues of harm, discrimination, and damages as
yet unaddressed."
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.
However, 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). Should complainant prevail on this complaint, the possibility
of an award of compensatory damages exists. See Glover v. United
States Postal Service, EEOC Appeal No. 01930696 (December 9, 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).
As the agency failed to address the issue of compensatory damages, we find
that dismissal on the grounds that it was rendered moot was improper.
See Rouston v. National Aeronautics and Space Administration, EEOC
Request No. 05970388 (March 18, 1999).
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby remanded to the agency
for further processing in accordance with this decision and the Order
below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
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 (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
December 15, 2009
__________________
Date
2
0120093397
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093397