0120130934
06-19-2013
Larry Walker, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Larry Walker,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120130934
Agency No. 4H300017007
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 19, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a city carrier at the Agency's facility in Norcross, Georgia.
On June 20, 2007, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On March 9, 2007, he was issued a Letter of Warning (LOW);
2. On March 10, 2007, he was issued an LOW;
3. On March 16, 2007, he was placed on Emergency Off-Duty Status; and
4. On March 23, 2007, he was issued three separate 7-day suspensions related to the March 16 Off-Duty placement.
This case initially came before the Commission pursuant to Complainant's appeal in Walker v. United States Postal Service , EEOC Appeal No, 0120083307 (June 27, 2012).1 Therein, Complainant appealed the Agency's decision finding that he failed to show that the Agency discriminated against him as alleged. Commission records show that we vacated the Agency's decision finding that the record was not sufficiently developed. We determined that the Agency failed to provide sufficient information necessary to make a determination regarding whether the Agency's conduct was discriminatory. Specifically, we found that the record contained no sworn testimony from Agency officials who witnessed the incident on March 16, 2007, which led the Agency to place Complainant in an Emergency Off-Duty Status. In that regard, we remanded the matter to the Agency for supplementation of the record.
On remand, the Agency determined that Complainant's claims were moot as a result of grievances filed through the negotiated grievance procedure. In reaching this conclusion, the Agency determined that the suspensions and off-duty placement were rescinded and expunged Complainant's records and he was provided with the pay he lost. The Agency determined that this eradicated the effects of the alleged discrimination. The Agency further indicated that because Complainant requested compensatory damages, he was provided the opportunity to provide objective evidence that the claimed discrimination caused specific harm. In his compensatory damages claim, Complainant asserted that his pay was delayed and he was not able to work overtime for the days he was not working. Complainant also indicated that he planned to fix the air conditioner in his car and was not able to do so because of money he did not receive as a result of the Agency's conduct. Based on this information, the Agency issued a final decision on November 19, 2012, finding the complaint was rendered moot by the grievance settlement as Complainant failed to establish any entitlement to compensatory damages.
The instant appeal followed. Complainant offers no arguments in support of his appeal in this matter.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that the Agency shall dismiss a complaint that is moot. To determine whether the issues raised in Complainant's complaint remain in dispute, it must be ascertained (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if the interim relief or events have completely irrevocably eradicated the effects of the alleged violations. See County v. 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. In the instant case, Complainant does not dispute the Agency's contention that the off-duty placement and suspensions were rescinded and removed from Complainant's personnel file, and that he received backpay for the time he missed.
Where a timely claim for compensatory damages is made, the agency cannot dismiss the complaint for mootness, unless it can show that complainant is not entitled to damages. Ellicker v. Department of Agriculture, EEOC Request No. 05931079 (September 22, 1994). The evidence in the instant case indicates that the Agency requested that the Complainant provide information relating to the injury incurred and the cause of the harm in order to substantiate his claim for compensatory damages. Complainant responded with a narrative regarding not working overtime on the days he was out of work, and not being able to repair his car air conditioning. Upon review, we find that the Complainant's response to the Agency's request for information does not provide sufficient proof that damages were incurred nor does it provide sufficient proof linking the damages to the alleged discriminatory conduct. While he alleges that he missed out on overtime pay, he has provided no proof that he would have worked overtime during this time or how much. Based on the foregoing, we find that the Complainant is not entitled to compensatory damages.
Upon review we find that there is no reasonable expectation that the alleged violation will recur in light of the grievance settlement. We further find that these events have completely and irrevocably eradicated the effects of the alleged discrimination. In that regard we determine that the Agency's dismissal of claims 3 and 4 as moot was proper. Because we determine that the Agency's dismissal in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(5) was proper, we will not address the Agency's discussion on the merits of claims 3 and 4.
CONCLUSION
The Agency's decision is AFFIRMED for the reasons set forth herein.
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 (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
June 19, 2013
__________________
Date
1 In our prior decision, we noted that Complainant was not appealing the LOWs issued by the Agency, as identified in claims 1 and 2 above. Accordingly, we will not address them here.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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