01A43995
09-29-2004
Andrew J. Kondas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Andrew J. Kondas v. United States Postal Service
01A43995
September 29, 2004
.
Andrew J. Kondas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43995
Agency No. 1C-171-0009-04
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 19, 2004, dismissing his formal 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.
In his formal complaint filed on January 26, 2004, complainant alleged
that he was subjected to discrimination in reprisal for prior EEO
activity.
On April 19, 2004, the agency issued a final decision that is the subject
of the instant appeal. The agency determined that complainant's formal
complaint was comprised of the following claim:
on December 2, 2003, complainant requested and volunteered to attend USFM
1000 Maintenance Training in Norman, Oklahoma, but his request was denied.
The agency first stated that agency records reflected that complainant
was scheduled to attend USFM 1000 System Management Training from February
24, 2004, through March 12, 2004. The agency determined that, according
to the training records, complainant successfully completed the course.
The agency noted that complainant requested that his formal complaint
be amended to include the claim that he was forced to go to a training
assignment for which he did not volunteer, even though the training he had
received, in Scranton, Pennsylvania, was the exact training provided at
the National Training for Employee Development (NCED) in Norman, Oklahoma.
The agency dismissed the instant complaint on the grounds that it
raised the same claim that has been pending or decided by the agency.
Specifically, the agency concluded that complainant raised a �similar
issue� in a formal complaint identified as Agency No. 1C-171-0024-02.
The agency also dismissed the instant complaint pursuant to 29 C.F.R. �
1614.107(a)(5), on the grounds of mootness.
On appeal, complainant acknowledges volunteering to attend USFM 1000
Maintenance Training (Course No. 5566104) starting January 5, 2004
at the NCED in Norman, Oklahoma, which requires 19 training days to
complete, or 146.0 training hours. Complainant further argues that
he was "ordered" to attend USFM 1000 Maintenance Training (Course
No. 5560237) in Scranton, Pennsylvania. Complainant argues, however,
that the Scranton, Pennsylvania training "was not the class I originally
put in for and is not exactly the same as they would like [the Commission]
to believe." Complainant argues that the Scranton training requires 13
training days to complete or 104.0 training hours.
In response, the agency submits an e-mail from a NCED Training
Coordinator (Coordinator)at the NCED's e-mail dated June 30, 2004, in
which he provided technical clarification relative to Course Nos. 5566104
(Norman, OK) and 5560237 (Scranton, PA). The agency further states that
a review of the e-mail reveals that both courses are taught with the same
training materials and the same pool of written and practical tests.
The agency states that Course No. 5566104 (Norman, OK) is structured
differently because it is delivered at a remote leased facility where
the participants are provided a six-hour block of lecture and laboratory
time; that the students have less laboratory time per day and the course
length in days is adjusted accordingly; and that to compensate for travel
time on the weekend, the hours per day are adjusted and in doing so,
the students are provided a total of 112 hours of student/instructor
contact time. The agency states that Course No. 5560237 (Scranton,
PA) is structured to be an eight-hour per day class for a total of 104
hours of student/instructor contact time; that the trainee actually
receives more time on the machines and more one-on-one time with the
instructors than the students in the resident class; and that the
eight-hour difference in student/instructor contact time is primarily
attributed to the larger class size which requires more time to complete
the timed practical examinations.
In the instant case, we determine that the matters raised in the
prior complaint (Agency No.1C-171-0024-02) and the incident raised in
instant complaint are not identical. The record reflects that in Agency
No.1C-171-0024-02, the agency accepted in pertinent part the following
claim for investigation:
on May 28, 2002 and August 7, 2002, complainant was denied training at
the NCED.
In contrast, the instant complaint addresses the issue that on a
date subsequent to the dates identified in Agency No. 1C-471-0024-02,
(December 2, 2003), complainant requested and volunteered to attend USFM
1000 Maintenance Training in Norman, Oklahoma and was denied.
It has long been established that "identical" does not mean "similar." The
Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No. 01955890
(April 5, 1996). The matters raised in Agency No. 1C-171-0024-02 do
not address the identical issue as raised in the instant complaint.
Therefore, we find that the agency improperly dismissed complainant's
complaint on the grounds of stating the same claim as a prior complaint.
The agency also dismissed, without elaboration, the instant
complaint on the alternative grounds of mootness, pursuant to 29
C.F.R. � 1614.107(a)(5). However, the record reflects that during
pre-complaint processing, complainant requested compensatory damages for
�the losses I have incurred due to continued training denials and legal
fees incurred.� We have 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. Jackson v. USPS, EEOC Appeal No. 01923399
(November 12, 1992); request to reopen denied, EEOC Request 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.
See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993).
Therefore, we find that the agency improperly dismissed the complaint
on the alternative grounds of mootness pursuant to � 1614.107(a)(5).
Accordingly, the agency's decision to dismiss complainant's complaint
is hereby REVERSED. The complaint is REMANDED to the agency for further
processing in accordance with this decision and the ORDER 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 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 29, 2004
__________________
Date