0120082957
01-09-2009
Robert L. Rebele, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert L. Rebele,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082957
Agency No. 4A117000708
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 16, 2008 final decision concerning his equal
employment opportunity (EEO) complaint alleging 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. For the following reasons, the
agency's decision is affirmed in part reversed in part and remanded.
In the instant matter, complainant alleged that the agency discriminated
against him on the basis of reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. when:
1. On or about September 4, 2007 complainant's leave was denied;
2. On or about September 21, 2007, complainant's Enterprise Resource
Management System (eRMS) and Time and Attendance Control System (TACS)
computer access was taken away and
3. As of November 28, 2007, complainant had not bee paid for Pay Period
19, week
In its final decision, the agency dismissed claims 1 and 3 as
moot in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(5).
Specifically, the determined that in claim 1, complainant's leave was
initially denied for September 4, 2007, but that it was subsequently
approved by complainant's supervisor after complainant submitted proper
medical documentation to support his absence from August 11, 2007 through
September 21, 2007. In that regard, the agency concluded that claim 1 was
moot. In addition, the agency determined that with respect to claim 3,
complainant was compensated for not receiving pay in pay period 19, week
1 by way of a pay adjustment on February 14, 2008. The agency concluded
also that claim had been rendered moot by the agency's actions.
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that the agency
shall dismiss a complaint that is moot. To determine whether the issues
raised in the complaint remain in dispute, it must be ascertained (1)
if it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) if the interim relief or
events have completely and irrevocably eradicated the effects of the
alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625
(1979). When such circumstances exist, no relief is available and no
need for a determination of the rights of the parties is presented.
Upon review, the Commission finds that claims 1 and 3 have not been
rendered moot, because complainant's formal complaint reflects that
complainant has requested compensatory damages. The Commission has held
that an agency must address the issue of compensatory damages when the
complainant presented objective evidence that he incurred compensatory
damages and that the damages were related to the alleged discrimination.
See Jackson v. USPS, EEOC Appeal No. 05930386 (February 11, 1993).
Where, as here, a complainant requests compensatory damages during the
processing of his complaint, the agency is obliged to request from
the complainant objective evidence of such damages. In this case,
the agency indicates in its final decision that the EEO Investigator
asked complainant for "specific information as to why the complainant
believed he was entitled to such damages," and that complainant offered
no evidence. We find however, that in this case, because complainant's
formal complaint requested compensatory damages as a remedy for the
agency's alleged conduct, the agency had a duty to request objective
evidence of damages. In this case, the agency did not request objective
evidence of compensatory damages from complainant. If complainant were
to prevail in his claim, the possibility of an award of compensatory
damages exists, and complainant's claim is not moot. See Glover v. USPS,
EEOC Appeal No. 01930696 (December 9, 1993). The agency's decision
dismissing claims 1 and 3 as moot is revered.
Turning now to complainant's claim that his computer access to eRMS and
TACS was taken away, the agency found that complainant failed to establish
discrimination as alleged. Specifically, the agency determined that
complainant failed to establish a prima facie case of discrimination.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
In the instant matter, complainant contends that in reprisal for his
prior EEO activity, the agency took away his eRMS and TACS computer
access. The record indicates that eRMS and TACS allow agency officials
to access employee personnel records related to time and attendance.
Because complainant once served as an acting supervisor, he had access
to employee records through eRMS and TACS. However, once complainant
resumed his assigned position as a regular clerk, his access to employee
certain records was removed. The agency indicates further that while
complainant was no longer permitted to access the personnel records of
employees no longer under his supervision, he was permitted to access
TACS to perform his assigned duties. Moreover, the agency states that
while complainant had eRMS access as an acting supervisor, agency policy
dictates that regular clerk employees are not permitted access to eRMS.
As such, the agency contends that complainant's computer access to
eRMS was taken away in accordance with agency policy and not for any
discriminatory reason.
Upon review, we find that the agency has articulated legitimate,
nondiscriminatory reasons for its decision in claim 2. Moreover, we
find that complainant has failed to present evidence that the agency's
articulated reasons were a pretext for discrimination.
CONCLUSION
The agency's decision dismissing claims 1 and 3 is reversed and the
claims are remanded to the agency for processing in accordance with
this decision and the order below. The agency's decision in claim 2
was proper and is affirmed for the reasons set forth herein.
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 (T0408)
This decision affirms the agency's final decision/action 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
January 9, 2009
__________________
Date
2
0120082957
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120082957