[Redacted], Samuel R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 24, 2021Appeal No. 2020000246 (E.E.O.C. May. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Samuel R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020000246 Hearing No. 471-2017-0014X Agency No. 4J-481-0017-16 DECISION On September 9, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 19, 2019 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. ISSUE PRESENTED Whether Complainant’s complaint that the Agency discriminated against him on the bases of disability and in reprisal for prior protected EEO activity by ordering him to undergo a second fitness-for-duty examination (FFD) has been rendered moot by the decision of an Equal Employment Opportunity Commission Administrative Judge finding in Complainant’s favor and awarding relief in Agency No. 1J-483-0036-13 which included a claim involving a determination that Complainant was not fit for duty. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020000246 2 BACKGROUND Complainant, a Distribution Operations Supervisor, EAS-1,7 at the Agency’s Processing and Distribution Center in Detroit, Michigan, previously filed an EEO complaint (Agency No. 1J- 483-0036-13), in which he alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), disability (bi-polar disorder), and in reprisal for prior protected EEO activity when he was called a racial slur by his manager, placed and kept in an emergency off-duty status, and issued a letter of warning. An EEOC Administrative Judge (AJ1) held a hearing and issued a decision on November 15, 2016, finding in Complainant’s favor and ordering, in pertinent part, the following relief: • Retroactive reinstatement with backpay, leave and benefits. • Compensatory damages in the amount of $250,125. • Training for and consideration of disciplinary action against the responsible management officials. • Attorneys’ fees and costs in the amount of $100,936.77. • Posting a notice that unlawful discrimination had occurred at the facility. AJ1 Decision, (Nov. 15, 2016), pp 100-113.2 In its response to Complainant’s appeal, and in its motion for summary judgment before the Administrative Judge assigned to the instant case (AJ2), the Agency presented documentation establishing that it had completed all of the elements of relief specified in AJ1’s order. On February 22, 2016, while Agency No. 1J-483-0036-13 was pending before AJ1, Complainant filed Agency No. 4J-481-0017-16, setting forth the allegation described above.3 The Agency dismissed the complaint for failure to state a claim, but in Barry G. v. U.S. Postal Serv., EEOC Appeal No. 0120161529 (June 28, 2016), we remanded the matter for further processing. The allegation was framed in the acceptance letter dated July 13, 2016 as follows: “You alleged discrimination based on Disability (stress) and Retaliation (prior EEO Activity) when on *** 2 In Hung P. v. U.S. Postal Serv., EEOC Appeal No. 0120171054 (Feb. 21, 2019), we found that the remedy awarded by AJ1 constituted full relief. The compliance report and supporting documentation corresponding to that appellate decision established that the Agency had completed all of the elements of relief specified in AJ1’s order. 3 The instant complaint is one of four that had been filed by Complainant. The first was Agency No. 1J-483-0036-13, described above. The second was Agency No. 4J-481-0100-15, in which Complainant alleged that he was denied paid leave, taken off administrative leave, and not allowed to return to work. The Agency dismissed this complaint and Complainant did not appeal the dismissal. The third is the instant complaint, Agency No. 4J-481-0017-16. The fourth is Agency No. 4J-481-0013-17, in which Complainant alleged discrimination when he was forced to undergo a second-opinion medical examination and not compensated for it. The fourth complaint is pending before AJ2. Agency’s Response Brief, p. 1, n. 1. 2020000246 3 October 5, 2015, you were sent for a second Fitness for Duty (FFD) examination.” The acceptance further stated: “If you do not agree with the accepted issue as defined above, you must provide a written response specifying the nature of your disagreement within seven (7) calendar days of the date of your receipt of this letter.” The Agency investigated Agency No. 4J-481-0017-16 and thereafter provided Complainant with a copy of the investigative report notice of his right to request a hearing before an Administrative Judge. Complainant timely requested a hearing but, in a letter, dated April 12, 2018, he formally withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination or reprisal as alleged. CONTENTIONS ON APPEAL Complainant initially contends that the Agency improperly framed the issue accepted for investigation, asserting that it misidentified his disability as stress rather than bi-polar disorder and that it should have included the allegation that he was denied the right to return to work as a result of the second FFD. Appeal Brief, pp. 15-19. Second, Complainant contests the Agency’s findings and conclusions on the merits, maintaining in the alternative, that he had established a prima facie case of discrimination and reprisal, that the Agency had not rebutted his prima facie case, and that the second FFD examination constituted a per se violation of the Rehabilitation Act. Appeal Brief, pp. 19-32. The Agency responded that Complainant had the opportunity to challenge the Agency’s framing of his claim in the acceptance letter but declined to take advantage of that opportunity. Response Brief, pp, 3-5. More significantly, the Agency maintains that Complainant had received all the relief to which he was entitled as a result of AJ1’s decision in Agency No. 1J-483-0036-13, and consequently, that the issues pertaining to the legality of the second FFD and whether he was prevented from duly returning to work because of it are moot. Response Brief, pp. 5-7. ANALYSIS AND FINDINGS EEOC regulations direct agencies to dismiss complaints that are moot, pursuant to 29 C.F.R. §1614.107(a)(5). A case is moot when: (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will occur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Tera B. v. U.S. Postal Serv., EEOC Appeal No. 2021001319 (Feb. 22, 2021). In view of the extent of the litigation and consequences to the Agency that resulted from the Agency’s attempts to remove Complainant from the payroll, the likelihood of another violation occurring is extremely remote. Additionally, as the Agency has thoroughly documented, Complainant had received all of the relief to which he was entitled as a result of the AJ1’s decision in Agency No. 1J-483-0036-13. This would have been true even if Complainant had prevailed on the merits in the instant complaint. He was reinstated retroactive to the date of his removal, awarded back pay and benefits with interest, awarded compensatory 2020000246 4 damages, and awarded attorneys’ fees. We therefore agree with the Agency that the issue regarding the second FFD raised in Agency No. 4J-481-0017-16 is moot, and for that reason, we need not address that issue on the merits or Complainant’s remaining contentions on appeal. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020000246 5 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ____________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 24, 2021 Date Copy with citationCopy as parenthetical citation