Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionJul 23, 2014
0120132533 (E.E.O.C. Jul. 23, 2014)

0120132533

07-23-2014

Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120132533

Agency No. 4H-300-0155-11

DECISION

Complainant filed an appeal from the Agency's May 24, 2013 final decision concerning his equal employment opportunity (EEO) complaint in which he alleged 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sale, Services & Distribution Clerk ("Mail Processing Clerk") at the Agency's Post Office in Roswell, Georgia.

On June 24, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male)1 and retaliation when, on February 15, 2011, management issued to Complainant a Letter of Warning, charging him with "failure to be regular in attendance." Specifically, he alleged that his supervisor ("Supervisor") (female) disciplined Complainant, a male employee, but did not issue comparable discipline to a female coworker for the same conduct. As a requested remedy, Complainant sought "removal of all discipline, compensatory damages, attorney's fees, EEO training for the discriminating officials, and all other available equitable relief." See Formal Complaint, page 2.

The record shows Complainant was diagnosed with Teniapedias in both feet. He averred that he has seen a podiatrist twice monthly for the condition since 1995. Complainant scheduled the medical appointments in advance and notified management, including the Supervisor,2 of his appointments. He provided the Supervisor with documentation supporting his requests for leave to go to appointments for his condition. He asserted that she regularly approved his requests for leave.

Complainant was issued a Letter of Warning by the Supervisor on February 15, 2011, for "failure to be regular in attendance." The Letter of Warning specified dates for which Complainant had submitted leave requests for his medical appointments. The Supervisor had approved leave for these dates. The record also shows that the Supervisor did not issue Complainant's female co-worker a Letter of Warning or count the absenteeism against her even though she had been out as much, or more, than Complainant. The female coworker was also a Mail Processing Clerk. The Supervisor averred that the named coworker "is on FMLA [Family and Medical Leave Act] which I have been trying to get [Complainant] to apply for."

The record also shows that Complainant objected to management's attempts to get him to request FMLA leave. It is undisputed that the day before he was issued the Letter of Warning, Complainant informed his Supervisor that he was entitled to see his physician when necessary and should not have to apply for FMLA.

On March 31, 2011, the February 15, 2011 Letter of Warning was rescinded due to a grievance settlement.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an EEOC Administrative Judge (AJ), but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).

In its final decision, the Agency first dismissed the complaint as moot, reasoning that the complaint failed to identify an unresolved harm since the Letter of Warning was rescinded as a result of a grievance settlement and Complainant "did not establish his request for compensatory damages."

Alternatively, the Agency found that Complainant and the female comparator were not similarly situated because the comparator "was protected under FMLA for her absences while the complainant was not so protected under FMLA." The Agency reasoned that management has shown that its actions were taken for a legitimate nondiscriminatory reason - its no-fault attendance policy. The Agency stated that "had the complainant applied for FMLA protection and received it, he would not have been given the Letter of Warning for his failure to be regular in attendance." The Agency also found that Complainant was not an individual with a disability within the meaning of the Rehabilitation Act and not, therefore, entitled to its protections.

This appeal followed.

ANALYSIS AND FINDINGS

As an initial matter the Agency dismissed the complaint as moot. The Agency reasoned that the Letter of Warning at issue was rescinded through the negotiated grievance process approximately six weeks after it was issued. The Agency asserted that Complainant did not prove any other harm resulted from the rescinded warning. Therefore, the Agency dismissed that complaint as there was no remaining unresolved harm requiring further adjudication.

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 fact finder 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. Department 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.

In this case, it is undisputed that the Letter of Warning was rescinded through the grievance process. There is also no evidence in the record that the letter remained in Complainant's personnel record or was used against Complainant in any subsequent disciplinary action.

However, before a finding can be made that the grievance settlement completely eradicated the effects of the alleged discrimination, we note that as part of the remedy for the complaint, Complainant requested compensatory damages. The Commission has held that the issue of compensatory damages must be addressed 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 (Nov. 12, 1992), request for reconsideration denied, EEOC Request No. 05930306 (Feb. 1, 1993). Here, however, a careful review of the evidence does not show that Complainant supported his claim for compensatory damages with evidence of either pecuniary or non-pecuniary harm. In making this determination, we note that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the agency for the discriminatory action. Since we find that the evidence of record does not support Complainant's claim for compensatory damages, we conclude that the Agency did not err in dismissing the complaint as moot.

Since we are affirming the Agency's dismissal of the complaint, we will not address its alternative finding of no discrimination on the merits of the claim. The Agency's final decision is AFFIRMED.

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 tends 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 (S0610)

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. 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 (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

July 23, 2014

__________________

Date

1 In his original complaint, Complainant also raised a claim of disability discrimination. However, in his brief submitted on appeal, Complainant indicated that he was appealing the Agency's determination regarding his "sex and retaliation claims only." Therefore, we will not address his disability claim further in this decision.

2 She became his supervisor in March 2010.

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0120132533

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120132533