0520090542
08-07-2009
Leslie G. Yaeger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leslie G. Yaeger,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520090542
Appeal No. 0120090925
Agency No. 4J-530-0004-08
DENIAL
The agency timely requested reconsideration of the decision in Leslie
G. Yaeger v. United States Postal Service, EEOC Appeal No. 0120090925
(May 21, 2009). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In our prior decision, the Commission found that the agency erred in
implementing the AJ's decision to dismiss the complaint on the grounds
of mootness. The AJ found that a previous complaint, also regarding
the non-selection for promotion to Lead Automotive Technician, which
occurred earlier (on August 13, 2005), was settled and therefore provided
complainant with make whole relief for the damages he suffered even with
respect to the later non-selection for the position in September 2007.
On appeal, however, complainant argued that he suffered additional pain
and suffering with the later non-selection that was not compensated by
the settlement. The Commission found that although complainant requested
compensatory damages for the second non-promotion, the settlement only
provided $3,500 in compensatory damages for the first non-promotion and
did not explicitly resolve the second complaint. Finding that complainant
could suffer additional compensatory damages as a result of the second
non-promotion and that the agency failed to address the issue for the
second non-selection, the Commission remanded the case for a hearing.
In its request, the agency argues that AJ correctly concluded that the
instant complaint was moot "because it sought the same compensatory
damages paid in the first case for the same cause of action."
Specifically, the agency contends that the AJ's make whole relief included
"back pay from August 2005 to the date of the decision July 2008" as well
as "$3,500 in non-pecuniary compensatory damages for the same period as
the back pay period." According to the agency, "[n]o separate period of
time exists for which compensatory damages can be awarded in the second
instant case"; that the time of the second case, July 2007 to July 2008,
is included within the time frame from the first case, August 2005 to
July 2008. The agency asks that the dismissal be affirmed, because it
has already addressed the matter of compensatory damages.
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the
request. For the first time, the agency has provided a copy of the AJ's
July 16, 2008 decision, regarding Case No. 4J-530-0133-05, in support of
its belief that compensatory damages in the instant case has already been
considered and resolved. Moreover, as noted in our prior decision, the
settlement agreement language expressly states "this Agreement does not
resolve Complainant's pending EEOC complaint, Agency No. 4-J-530-0004-08
. . . ." Therefore, the matter of compensatory in the instant case must
be remanded. The decision in EEOC Appeal No. 0120090925 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
Field or District Office a req2uest for a hearing within fifteen (15)
calendar days after this decision becomes final. The hearing request
must include a brief explanation that it is being made pursuant to
this decision, and be accompanied with the complaint, investigative
files, and hearing record, and a copy of this decision. Thereafter,
an Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. � 1614.109 and the agency shall issue a
final action in accordance with 29 C.F.R. � 1614.110.
The agency shall provide a copy of the hearing request to the Compliance
Officer at the address set forth below, with a copy to complainant.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
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 (Z1008)
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 7, 2009
__________________
Date
2
0520090542
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0520090542