Willie M. Strange, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 23, 2003
01A35266_r (E.E.O.C. Dec. 23, 2003)

01A35266_r

12-23-2003

Willie M. Strange, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Willie M. Strange v. United States Postal Service

01A35266

December 23, 2003

.

Willie M. Strange,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A35266

Agency No. 4C-280-0162-03

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated November 5, 2003, dismissing his complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq.

In his formal EEO complaint, filed on September 11, 2003, complainant

alleged that he was subjected to discrimination in reprisal for prior EEO

activity when on May 31, 2003 and June 4, 2003, he requested 16 hours

of sick leave, but was charged leave without pay. The EEO Dispute

Resolution Specialist's Inquiry Report indicated that complainant

requested $5,000.00 in damages for �continuing harassment. . .� In his

formal complaint, complainant requested as a remedy that all medical

bills be paid with interest and that he �be made whole.�

In its final decision, the agency dismissed the complaint as moot, finding

that 16 hours of sick leave had been restored. The agency found that

in correspondence to complainant dated August 22, 2003, it acknowledged

the error in charging complainant leave without pay for his absences.

In addition, the agency's letter indicated that the error had been

corrected the following pay period.

The Commission finds that complainant's complaint was improperly dismissed

pursuant to 29 C.F.R. � 1614.107(a)(5). 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. 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.

The Commission has held that an agency must address the issue of

compensatory damages when a complainant shows objective evidence that he

has incurred discrimination. Jackson v. United States Postal Service,

EEOC Appeal No. 01923399 (November 12, 1992), req. for recons. den., EEOC

Request No. 05930306 (February 1, 1993). 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

12, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422

(December 3, 1993). Therefore, as the agency failed to address the

issue of compensatory damages, we find that dismissal of complainant's

complaint on the grounds that it was rendered moot was improper.

See Rouston v. National Aeronautics and Space Administration, EEOC

Request No. 05970388 (March 18, 1999).

Accordingly, the agency's dismissal of complainant's complaint pursuant to

29 C.F.R. � 1614.107(a)(5), as moot was improper. The agency's dismissal

of the instant complaint is REVERSED and we REMAND the complaint 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

December 23, 2003

__________________

Date