01A33585
02-11-2004
Robert G. Yost, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert G. Yost v. United States Postal Service
01A33585
02-11-04
.
Robert G. Yost,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33585
Agency No. 1G-771-0030-03
DECISION
Upon review, the Commission finds that complainant's complaint
was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. In a complaint dated April 19, 2003,
complainant alleged that he was subjected to discrimination on the
basis of disability(deafness) when, on January 6, 2003, he was denied a
reasonable accommodation when a meeting was held with all employees in
his pay location in which a film was viewed that was not closed captioned
and an ASL (American Sign Language) interpreter was not present.
The agency dismissed complainant's complaint on the grounds that he
was not aggrieved, i.e., he did not suffer a personal loss or harm
with respect to a term, condition, or privilege of his employment.
According to management, a make-up session was held on a later date
for deaf employees. At that meeting, an interpreter was provided
and complainant was present. The agency maintained that, because the
January 6, 2003 meeting did not concern a matter that was work related
or time sensitive, complainant was accommodated when he was provided
the information on the later date.<1>
The Commission has repeatedly reversed agencies' dismissals for failure
to state a claim where the agency based the dismissal on its view of the
ultimate merit of the complaint allegations. Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). The proper focus
for dismissals of individual EEO complaints under 29 C.F.R. � 1614.107(a)
is on whether the complainant is allegedly aggrieved due to an unlawful
employment practice in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. 2000e et seq.; the Age Discrimination in
Employment Act, as amended, 29 U.S.C. 621 et seq.; the Equal Pay Act,
29 U.S.C. 206(d); or the Rehabilitation Act, as amended, 29 U.S.C. 791
et seq.
The question as to whether a complainant is allegedly aggrieved
due to an unlawful employment practice for which there is a remedy
under the Federal equal employment statutes, of necessity, requires
a consideration of whether the complainant has alleged unlawful
discrimination regarding hiring, termination, compensation, or other
terms, conditions, or privileges of employment. Terms, conditions,
or privileges of employment include, inter alia, promotion, demotion,
discipline, reasonable accommodation, appraisals, awards, training,
benefits, assignments, overtime, leave, tours of duty, etc. A complaint
which alleges unlawful disparate treatment regarding a specific term,
condition, or privilege of employment should not be dismissed for failure
to state a claim. See, e.g., Miller v. Health and Human Services, EEOC
Request No. 05950577 (April 4, 1996) (intense scrutiny of work products);
and Brown v. Treasury, EEOC Request No. 05950415 (December 14, 1995)
(type of assignments).
We do not agree with the agency's contention that complainant is no
longer aggrieved, i.e., that his claim is essentially moot because a
make-up session was subsequently held for deaf employees. In order
for a claim to be moot, it must be ascertained (1) whether it can
be said with assurance that there is no reasonable expectation that
the alleged violation will recur, and (2) if 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.
Even if we were to find that there was no reasonable expectation that
the alleged violation will recur, we do not find that interim relief
or events have completely and irrevocably eradicated the effects of the
alleged violation. In this regard, we note complainant's statement in
his informal complaint that while the 40 or more �hearing employees� were
treated with respect and had full knowledge of the facts presented at
the meeting, he was denied the same respect and benefits and was treated
�deceitfully.� On appeal, complainant maintained that the agency's
actions were part of a pattern of behavior that, among other things,
resulted in feelings of �outrage,� and �insult.� He also indicated that
he, and other deaf employees, felt deprived, rejected and disregarded.
A fair reading of the above indicates that complainant, although not using
the exact words, is raising a claim for compensatory damages. Therefore,
if complainant prevailed on his complaint, the possibility of an award of
compensatory damages exists. See Glover v. United States Postal Service,
EEOC Appeal No. 01930696 (December 9, 1993). Because the possibility
of an award of compensatory damages exists, we find that the complaint
cannot be dismissed as moot.
Accordingly, the dismissal of complainant's complaint is REVERSED.
The complaint is REMANDED for processing.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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
__02-11-04________________
Date
1The meeting pertained to the solicitation
of bone marrow donors.