[Redacted], Alfonzo M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Dec 21, 2022

Appeal No. 2022003886 (E.E.O.C. Dec. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alfonzo M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003886 Agency No. 4E-890-0061-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 10, 2022, dismissing a formal complaint alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Letter Carrier at the Agency’s Spring Valley Post Office in Las Vegas. On April 25, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on disability when, on March 11, 2022, he was denied a PS Form 3971 and subsequently charged Absent Without Leave (AWOL). The record reflects that on March 11, 2022, Complainant asserted that he had a family emergency and had to leave work early. When he was leaving the office, he requested a PS Form 3971 (Request for Notification of Absence) for sick leave-dependent care, but management told him he could not have one because he needed a doctor’s note first. 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. 2022003886 2 Management officials therefore marked Complainant as AWOL. On March 17, 2022, Complainant asked the manager why he was denied a PS Form, and he told him it was because of his attendance. In his formal complaint, Complainant requested a compensatory remedy of $60,000 to resolve his complaint. Because he requested compensatory damages, the Agency provided him with the opportunity to support his alleged entitlement with a letter sent via Delivery Confirmation on May 2, 2022. On June 10, 2022, the Agency issued the instant final decision, dismissing the formal complaint, pursuant to § 1614.107(a)(5), on the grounds of mootness. The instant appeal followed. ANALYSIS AND FINDINGS To determine whether the issue raised in this complaint is moot, the Agency 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 of events have completely and irrevocable 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 party is presented. 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 05930306 (February 1, 1993). Should Complainant prevail on this complaint, the possibility of an award of compensatory damages exists. See Glover v. United States Postal Service, EEOC Appeal No. 019306696 (December 9, 1993). As noted above, Complainant has requested compensatory damages. The Agency requested that Complainant provide a response to the compensatory damages issue justifying the request, and Complainant did so. In the response, Complainant stated that the compensatory damages request was due to being forced to borrow money from a relative to pay bills. Complainant also claimed that this matter has triggered and elevated various conditions, such as becoming more aggressive, being hyper-vigilant, and being unable to sleep well. We determine that the response is sufficient to keep the formal complaint alive. The Agency’s determination that Complainant’s response was inadequate addressed the merits of his claim, as opposed to the present procedural issue of whether the formal complaint is rendered moot. Ferrazoli v. U.S. Postal Serv., EEOC Request No. 05910642 (August 15, 1991). 2022003886 3 Finally, we note that in its final decision, the Agency appears to address an added analysis regarding Complainant not having stated a claim, without expressly dismissing the formal complaint for failure to state a claim, on those grounds. We determine, however, that Complainant has alleged a personal loss or harm to a term, condition, or privilege of employment for which there is a remedy. We REVERSE the Agency’s final decision dismissing Complainant’s complaint and REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 2022003886 4 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 2022003886 5 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. 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 (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 (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. 2022003886 6 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 December 21, 2022 Date