0120112220
08-26-2011
Darwin M. Nealy, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Darwin M. Nealy,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120112220
Agency No. 4G-780-0044-11
DECISION
On March 12, 2011, Complainant filed a timely appeal with this Commission
from a final Agency decision (FAD) dated March 2, 2011, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a City Letter Carrier at the Agency’s North Broadway Station facility
in San Antonio, TX. On February 11, 2011, he filed a formal complaint
alleging that the Agency subjected him to discrimination on the bases
of race (African-American), disability (unspecified), age (48), and
reprisal for prior protected EEO activity under an EEO statute that was
unspecified in the record when:
On November 3, 2010, he received a Notice of 14 Day Suspension (No
Time-Off) dated October 3, 2010.1
The Agency dismissed the complaint, in relevant part, for failure to state
a claim. It reasoned that a letter of warning reduced to a discussion
is no longer a disciplinary action, and the complaint did not rise to
the level of actionable harassment.
ANALYSIS AND FINDINGS
The Commission finds that while the Agency dismissed the complaint
for failure to state a claim, the complaint is more properly analyzed
in terms of whether it has been rendered moot. See Maples v. United
States Postal Service (Great Lakes Area), EEOC Appeal No. 0120102374
(Sept. 3, 2010). 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. 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 parties is presented.
The complaint has not been rendered moot at a minimum, because in his
complaint Complainant requested compensatory damages. Where, as here,
a complainant requests compensatory damages, the Agency had a duty to
address the issue of compensatory damages. In this case, the Agency
did not address the issue of compensatory damages. If Complainant were
to prevail, the possibility of an award of compensatory damages exists,
rendering Complainant's formal complaint not moot.
Moreover, we note that Complainant has raised a claim of unlawful
retaliation. The Commission has a policy of considering reprisal claims
with a broad view of coverage. See Carroll v. Department of the Army,
EEOC Request No. 05970939 (April 4, 2000). Under Commission policy,
claimed retaliatory actions which can be challenged are not restricted
to those which affect a term or condition of employment. Rather,
a complainant is protected from any discrimination that is reasonably
likely to deter protected activity. See EEOC Compliance Manual Section 8,
"Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll,
supra. We find that receiving a suspension could reasonably likely
deter EEO activity.
Accordingly, the Agency’s decision to dismiss Complainant’s claim
about his 14 day suspension is REVERSED.
ORDER
The Agency is ordered to process the remanded claim that Complainant was
discriminated against based on his race (African-American), disability,
age (48), and reprisal for prior protected EEO activity when on November
3, 2010, he received a Notice of 14 Day Suspension (No Time-Off) dated
October 3, 2010, 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 (K0610)
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 77960, Washington, DC
20013. 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 (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 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), 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 (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 (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
August 26, 2011
__________________
Date
1 In its FAD, the Agency defined another claim, i.e., whether Complainant
was discriminated against on the above bases when on September 14,
2010, he was put off the clock on Emergency Procedure without pay.
In an appeal statement dated March 11, 2011, Complainant wrote that this
issue was resolved and his complaint was based solely on the suspension
he received on November 3, 2010. For this reason, we do not address
the off the clock emergency procedure claim.
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0120112220
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112220