01A30692_r
03-19-2003
Patrick H. Green, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Patrick H. Green v. Department of the Army
01A30692
March 19, 2003
.
Patrick H. Green,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A30692
Agency No. BGANFPI0204C0380
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated October 8, 2002, 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
In his EEO complaint, filed on June 19, 2002, complainant alleged that
he was subjected to discrimination on the bases of disability and in
reprisal for prior EEO activity when:
(a) on March 26, 2002, complainant's supervisor told him that he was
going to remove him if he was unable to perform his duties as a driver;
(b) on April 12, 2002, in an act of alleged reprisal, his supervisor
told him that he could no longer perform his primary duties as a driver
because of his physical disability;
(c) on April 19, 2002, his supervisor gave him a performance standard
which stated that he had to work on tractor trailers with stake beds,
despite his disability;
(d) on or about May 13 and 14, 2002, his supervisor had him perform in
a capacity (on the South Carrier Run) that required lifting heavy loads
which was in violation of his medical disability profile;
(e) on May 29, 2002, he was relieved of all driving duties and assigned
to perform duties as a dispatcher, which caused him to suffer headaches
and chronic pain;
(f) on or about May 29, 2002, he was berated by comments from his
supervisor regarding medical documents and sick leave he took from May
17-29, 2002; and
(g) on May 29, 2002, his supervisor changed his duty hours from:
6:30 a.m.-3:00 p.m. to 9:00 a.m. to 5:00 p.m. without explanation or
consulting him.
Complainant's requested remedy consisted, in part, of payment of
�doctor bills.�
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency determined that complainant's claims of
discrimination are against management for modifying his driving duties
in response to his doctor's evaluation; and that complainant's complaint
has not alleged a personal loss as a result of agency action. The agency
evaluated complainant's claims as a claim of continuous harassment and
determined that the incidents did not constitute harassment.
The agency also dismissed the complaint on the grounds of mootness.
Specifically, the agency determined that complainant's complaint was
rendered moot by his doctor's note releasing him from his medical
restriction effective August 30, 2002.
On appeal, complainant contends that the agency's final decision
contained false statements concerning his claims of discrimination.
Complainant asserts that he was subjected to a variety of harassing
actions by his supervisor and other agency officials, including being
relieved from his driving duties while there was nothing in his doctor's
note that stated he could not drive; being retaliated against when he
was reassigned to a dispatcher position; his routine therapy for his
medical condition ended when his supervisor changed his work hours; his
supervisor is attempting to demote him because he's a disabled American
veteran and for filing an EEO complaint. Further, complainant states
that the constant harassment caused chronic pain and sleep disorder.
In response, regarding claims (a), (b) and (f), the agency contends
that complainant did not show how the comments have caused a personal
loss or harm regarding a term, condition, or privilege of his employment.
Specifically, the agency contends that claim (f), is an isolated incident
and did not rise to the level of harassment. Regarding claim (c), the
agency argues that complainant failed to show he was harmed, because his
short term work restriction was temporary and his supervisor did not feel
it was necessary to change his performance standards. Regarding claim
(d), the agency contends that complainant's temporary duty (driving
light vehicles) was fully compliant with his medical restrictions;
however, complainant re-injured his shoulder despite his supervisor's
instructions not to violate his medical restrictions. Regarding (e), the
agency contends that complainant's temporary assignment to the dispatch
office was fully compliant with his medical restriction. With respect
to claim (g), the agency noted that the change in complainant's work
hours was a result of its mission requirements and personnel changes,
not as a result of discrimination as alleged by complainant.
The Commission has previously held that an agency should not ignore
the pattern aspect of a complainant's claims and define the issues in a
piecemeal manner where an analogous theme unites the matters. See Drake
v. Department of the Air Force, EEOC Request No. 05970689 (March 29,
1994). When complainant's claims are viewed together in the context of a
claim of harassment, the Commission determines that they state a claim.
In his formal complaint, complainant has alleged that he was the subject
of harassment by agency officials, as reflected in a variety of incidents,
including, inter alia, change in duty hours (claim (g)); relieved from
driving duties (claim (e)); berated by his supervisor (claim (f )).
The agency's dismissal of the claims for failure to state a claim was
therefore improper. Complainant has alleged a person loss or harm
regarding a term, condition, or privilege of employment for which there
is a remedy. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Moreover, the Commission determines that dismissal of the instant
complaint as moot was improper. This complaint has not been rendered
moot because, at a minimum, complainant requested compensatory damages,
as reflected by a fair reading of his requested remedies. We have
held that an agency must address the issue of compensatory damages
when the complainant 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 a complaint, the agency
is obliged to request from the complainant objective evidence of such
damages. In this case, the agency did not request objective evidence of
compensatory damages. Should complainant prevail in his complaint, the
possibility of an award of compensatory damages exists, and complainant's
claim is not moot. See Glover v. USPS, EEOC Appeal No. 01930696 (December
9, 1993).
Accordingly, the agency decision to dismiss complainant's complaint on
the grounds of failure to state a claim and mootness was improper, and
is hereby REVERSED. The complaint as identified herein is REMANDED to
the agency for further processing in accordance with this decision and
the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 (R0900)
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 (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 19, 2003
__________________
Date