0120091915
06-18-2010
Ronald R. Miranda, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Ronald R. Miranda,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120091915
Agency No. 4K200003109
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 7, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed for failure to state a claim.
In his complaint dated February 9, 2009, Complainant alleged that he was
subjected to discrimination on the bases of race (unspecified) and color
(white) when:
1. From October 13 through October 17, 2008, Complainant was placed in
a Leave Without Pay (LWOP) status; and
2. During the week of Pay Period 22/01 of 2008, Complainant was not paid
eight hours of holiday pay.
The agency dismissed the complaint for failure to state a claim.
It determined that on January 28, 2009, corrections were made to
Complainant's pay to reflect 32 hours of Sick Leave and 8 hours of
Holiday Leave and, therefore, Complainant was not aggrieved. On appeal,
Complainant asserts that it took three months to correct the alleged
mistake in his leave and pay and that he was left without expected pay
while his medical bills were accumulating. Complainant requests that
we overturn the agency's dismissal. The agency requests that we affirm
the dismissal.
While 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.
While Complainant's pay was corrected, the record reflects that in
his formal complaint, Complainant requested compensatory damages.
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,
and therefore Complainant's complaint is not moot. See Glover v. United
States Postal Service, EEOC Appeal No. 01930696 (December 9, 1993).
Accordingly, we REVERSE the agency's final decision dismissing
Complainant's complaint and we REMAND this matter to the agency for
further processing in accordance with 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
June 18, 2010_____________
Date
2
0120091915
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091915