01A45673
11-24-2004
Anson Monta�ez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anson Monta�ez v. United States Postal Service
01A45673
November 24, 2004
.
Anson Monta�ez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45673
Agency No. 4A006001704
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 30, 2004, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In his complaint, complainant alleged that he was
subjected to discrimination on the basis of disability (Physical) when:
On August 20, 2003 complainant was issued a Notice of Proposed Removal
for alleged violations of the agency's Employee & Labor Relations Manual
after being observed, while on limited duty due to injury, dancing at
the 7th World Salsa Congress in San Juan, Puerto Rico;
Complainant was issued a Letter of Decision dated November 10, 2003
advising him that he would be removed effective November 15, 2003;
On November 24, 3003 a decision was made to reinstate complainant
effective November 25, 2003, with the outcome of the removal and back
pay issues left unresolved pending further discussion or an arbitration
ruling on the merits.
In July 2004 the final agency decision (FAD) dismissed the complaint as
moot after an arbitration panel awarded complainant full back pay and
struck any reference to the August 20, 2003 disciplinary action from
his official record in May 2004.
Complainant makes no new contentions on appeal.<1> The agency requests
that we affirm its FAD.
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
An allegation is moot only if: (1) 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
violation. Henderson v. Dep't of the Treasury, EEOC Request No. 05940820
(August 31, 1995) (citing 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.
The agency found complainant's claim was moot because he was awarded
full back pay in September 2004 and because the agency found there
was no reasonable expectation that the alleged violation would recur.
However, the arbitration award failed to address compensatory damages.
The Commission has held that an agency must address the issue of
compensatory damages before it can dismiss a complaint for mootness.
See Ness v. United States Postal Service, EEOC Appeal No. 01981368
(November 21, 2000). Complainant indicated in his complaint that he
was �affected� during the time he was left without pay. The Commission
finds that this is tantamount to a claim for compensatory damages.
The potential availability of compensatory damages in this case precludes
a finding of mootness because complainant may be entitled to additional
relief. The agency's dismissal of complainant's claim as moot was thus
improper because it did not address compensatory damages in its FAD.<2>
Accordingly, the agency's decision to dismiss complainant's claim on
the grounds of mootness is REVERSED. The complaint is REMANDED to the
agency for further processing.
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
November 24, 2004
__________________
Date
1On appeal complainant submitted documentation referencing allegations
which were not listed in the original complaint. These claims are not
addressed in this decision because they involve a different complaint.
2The Commission notes that the agency may also be required to pay interest
on complainant's back pay award pursuant to 29 C.F.R. � 1614.501.
The payment information in the record does not indicate any interest
was paid on complainant's back pay award.