0120111223
08-17-2012
Cornelius A. Donelan, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Cornelius A. Donelan, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120111223
Agency No. 1H-331-0002-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 3, 2010, dismissing a 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.
BACKGROUND
During the period at issue, Complainant worked as an Operations Industrial Engineer at the Agency's facility in Miami, Florida. On November 9, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected activity.
In its final decision, dated December 3, 2010, the Agency determined that Complainant's formal complaint was comprised of the following claims:
1) On September 20, 2010, [Complainant was] charged Leave Without Pay (LWOP) for a Family and Medical Leave Act protected absence; and
2) On an unspecified date, [Complainant was] harassed about [his] performance.
In the instant final decision of December 3, 2010, the Agency dismissed Complainant's formal complaint for failure to state a claim. The Agency stated that the record reveals that a pay adjustment was processed and that Complainant's LWOP was changed to Annual Leave-FMLA. The Agency further found that the alleged incidents were not sufficiently severe or pervasive to set forth an actionable claim of harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that he is being subjected to ongoing retaliation based on his prior protected activity. Complainant asserts that the instant formal complaint is related and intertwined with Agency Case No. 1H-331-0036-10.1 Complainant also asserts that the Agency is in breach of two settlement agreements.2
The Agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
The Agency dismissed this matter for failure to state a claim. However, we find it is more properly analyzed as to whether Complainant's complaint 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 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. Dep't 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.
Complainant's complaint has not been rendered moot. The Commission acknowledges that the record contains a copy of a TACS Adjustment Certification form reflecting that Complainant's LWOP was changed to Annual Leave-FMLA. However, Complainant has requested compensatory damages. Complainant in his formal complaint and his Information for Pre-Complaint Counseling form requests "other compensation as appropriate." We find that this constitutes a request for compensatory damages. Where, as here, a complainant requests compensatory damages during the processing of the complaint, the Agency is obliged to request from Complainant objective evidence of such damages. In this case, the Agency did not request objective evidence of compensatory damages from Complainant. Should Complainant prevail in his claim, the possibility of an award of compensatory damages exists, and Complainant's claim is not moot.3 See Glover v. U.S. Postal Serv., EEOC Appeal No 01930696 (Dec. 9, 1993).
CONCLUSION
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 (E0610)
To the extent possible, the Agency shall consolidate this matter with Agency Case No. 1H-331-0036-10.
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 (K0610)
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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
August 17, 2012
Date
1 The Commission reversed the Agency's dismissal for failure to state a claim, finding that Complainant set forth an actionable claim of harassment. Donelan v. United States Postal Service, EEOC Appeal No. 0120103073 (December 2, 2010).
2Commission records reflect that Complainant's breach claims are pending before the Commission in EEOC Appeal No. 0120110821. Thus, we will not address further herein Complainant's breach claims.
3 The Commission further finds that Complainant's claim that he was charged with Leave Without Pay rather than paid leave is reasonably likely to deter Complainant or others from engaging in protected activity and thus has set forth an actionable claim of reprisal.
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0120111223
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111223