0120081835
08-08-2008
Reynaldo Villanueva, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Reynaldo Villanueva,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081835
Agency No. 4G-770-0030-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated February 7, 2008, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
Complainant initiated EEO Counselor contact on October 17, 2007. Informal
efforts to resolve his concerns were unsuccessful. On January 22, 2008,
complainant filed a formal EEO complaint. Therein, complainant alleged
that he was subjected to discrimination on the bases of race, age,
and in reprisal for prior protected EEO activity.
In its final decision dated February 7, 2008, the agency determined that
complainant's complaint was comprised of the following claims:
1. on May 15, 2007, [complainant] was forced to work over 12
hours...observed on his route, questioned, and given instructions while
delivering mail; and
2. on October 12, 2007, [complainant] was given a seven-day
suspension for unsatisfactory work performance/unauthorized overtime.1
The agency dismissed claim (1) for untimely EEO Counselor contact.
Specifically, the agency stated that complainant initiated EEO Counselor
contact on October 17, 2007, outside of the applicable time limit.
The agency dismissed claim (2) on the grounds that it had been rendered
moot. Specifically, the agency stated that the suspension was removed
from complainant's record as of October 22, 2007.
On appeal, complainant asserts that the agency improperly dismissed his
complaint. Specifically, complainant states that his complaint "was for
the suspension and not for the incidents that happened on [May 15, 2007]."
Specifically, complainant states that the alleged incidents set forth in
claim (1) are part of a prior EEO case, Agency Case No. 4G-770-0218-07.
Upon review of the record, we find that the crux of complainant's
complaint is that he is alleging unlawful discrimination when he was given
a seven-day suspension.2 Based on these circumstances and complainant's
statement on appeal that the alleged incidents set forth in claim (1)
are not part of the instant complaint, we will not address claim (1)
herein.
The Commission finds that the agency improperly dismissed claim (2) on the
grounds that it has been rendered moot. 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 factfinder 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 the instant matter, the record reflects that complainant requested
compensatory damages. The record contains a copy of complainant's
Information for Pre-complaint Counseling form. Therein, complainant
requested "all relief under the law." In addition, the record contains
a copy of the EEO Dispute Resolution Specialist's Inquiry Report (the
Report). Therein, the Report provides that complainant requested all
relief under the law. The Commission views these statements as a request
for compensatory damages. Because complainant requested compensatory
damages, the agency should have requested that complainant provide some
objective proof of the alleged damages incurred, as well as objective
evidence linking those damages to the adverse action at issue. See Allen
v. United States Postal Service, EEOC Request No. 05970672 (June 11,
1998); Benton v. Department of Defense, EEOC Appeal No. 01932422 (December
10, 1993). As the agency failed to address the issue of compensatory
damages, we find that dismissal on the grounds that it was rendered
moot would be improper. See Rouston v. National Aeronautics and Space
Administration, EEOC Request No. 05970388 (March 18, 1999).
Accordingly, we REVERSE the agency's final decision dismissing claim
(2), complainant's suspension, and we REMAND this matter to the agency
for further processing in accordance with the Order below.
ORDER (E0408)
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 (K0408)
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 (M0408)
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 (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 (Z0408)
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
August 8, 2008
Date
1 The claims are re-numbered herein for ease of reference.
2 The record contains a grievance settlement agreement dated October
22, 2007. Therein, the grievance settlement agreement provides that
the letter of suspension dated September 19, 2007, which was issued on
October 12, 2007, will be removed from all files and records.
??
??
??
??
2
0120081835
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081835