01A24240_r
03-18-2003
Charles Mosely, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles Mosely v. United States Postal Service
01A24240
March 18, 2003
.
Charles Mosely,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24240
Agency No. 1G-772-0010-02
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated July 8, 2002, dismissing a consolidated complaint
of 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.
The agency consolidated two complaints, filed on March 1, 2002 (Agency
No.1G-772-0010-02), and April 7, 2002 (Agency No. 1G-772-0013-02).
The agency indicated that the consolidated complaint would be identified
by agency No. 1-G-772-0010-02. The agency determined that in the
consolidated complaint, complainant alleged that he was discriminated
against on the bases of disability and in reprisal for prior EEO
activity when:
On January 3, 2002, complainant was placed on restricted sick leave and
was being deprived of employment opportunities, which adversely affected
his status as an employee because he is a veteran with disabilities
(Agency No. 1G-772-0010-02).
On January 11, 2002, complainant was issued a Letter of Warning (LOW)
for failure to maintain a regular schedule (Agency No. 1G-772-0013-02).
The agency dismissed both claims for failure to state a claim.
Regarding claim (1), the agency determined that complainant had been
removed from the restricted sick leave list on March 1, 2002, and that
he failed to identify any specific incidents where he was deprived
employment opportunities. Regarding claim (2), the agency found that
the LOW had been reduced to a discussion on February 24, 2002.
Concerning the matter relating to complainant's restricted sick leave in
claim (1), the record indicates that complainant was placed on restricted
sick leave on January 3, 2002, and that the restrictions were removed by
letter dated March 1, 2002. Although the sick leave restrictions were
eventually removed by letter dated March 1, 2002, complainant claimed
compensatory damages for the period beginning on January 3, 2002, that
the restrictions were in force.
Upon review, the Commission finds that although the agency dismissed
the matter raised in claim (1) relating to restricted sick leave
for failure to state a claim, that issue is more properly analyzed
in terms of whether it has been rendered moot. EEOC Regulation 29
C.F.R. 1614.107(a)(5) provides that an agency shall dismiss a complaint
that is moot. A complaint is moot and a person is no longer aggrieved
when it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur, and the interim relief or events
have completely and irrevocably eradicated the effects of the alleged
violation. When both conditions are satisfied, neither party has a legal,
cognizable interest in the final determination of the under lying question
of fact and law. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).
We find that the restricted sick leave matter raised in claim (1) is not
moot because, at a minimum, complainant requested compensatory damages
in his formal complaint. The Commission has held that an agency must
address the issue of compensatory damages when a complainant has presented
objective evidence that he incurred compensatory damages and that the
damages were related to the alleged discrimination. See Jackson v. USPS,
EEOC Appeal No.01923399 (November 12, 1992); request to reconsider
denied, EEOC Request No. 05930386 (February 11, 1993). Consequently,
where, as here, a complainant requests compensatory damages during the
processing of the complaint, the agency is obligated to request from
the complainant objective evidence of such damages. The agency did not
request objective evidence of compensatory damages from complainant,
and improperly dismissed the claim.
With respect to the remainder of claim (1), relating to denial of
employment opportunities, the Commission determines that this matter
was properly dismissed for failure to state a claim. Complainant has
not identified any specific incidents wherein he was deprived employment
opportunities. See Hamilton v. Department of the Treasury, EEOC Appeal
No. 01A03706 (August 3, 2000); request to reconsider denied, EEOC Request
No. 05A01256 (November 15, 2000).
Finally, the Commission determines that claim (2) was properly dismissed.
The record shows that complainant's January 11, 2002 LOW was reduced to
an official discussion on February 24, 2002, by a grievance settlement.
The Commission has held that official discussions alone do not render
an employee aggrieved. See Miranda v. United States Postal Service,
EEOC Request No. 05920308 (June 11, 1992); Devine v. United States
Postal Service, EEOC Request Nos. 05910268, 05910269 and 05910270
(April 4, 1991). As we find no claim by complainant that the LOW or
discussion was recorded in any personnel or supervisory files, nor that
it can be used as a basis for any subsequent disciplinary action, claim
(2) was correctly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's dismissal of claim (2) is AFFIRMED. The
agency's dismissal of the portion of claim (1) relating to denial of
employment opportunities is also AFFIRMED. The agency's dismissal of
the portion of claim (1) relating to restricted sick leave is REVERSED,
and that claim is REMANDED to the agency for further process in accordance
with this decision and the Order below.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
March 18, 2003
__________________
Date