0120112589
02-02-2012
Bruce Patterson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Bruce Patterson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120112589
Agency No. 4C-440-0030-11
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated March 17, 2011, 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. Upon review, the Commission finds that Complainant's complaint
was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency’s Westpark Branch Station in Cleveland,
Ohio. On February 25, 2011, Complainant filed an EEO complaint alleging
that the Agency subjected him to discrimination in reprisal for prior
protected EEO activity when:
1. On an unspecified date, he was involved in a Pre-Disciplinary Interview
(PDI) that resulted in a Letter of Warning dated November 17, 2010 for
Unacceptable Conduct which was reduced to a discussion; and
2. He was constantly harassed on a daily basis.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. As to claim (1), the Agency concluded
that official discussions do not render an employee aggrieved and thus,
Complainant had not suffered any personal loss or harm with respect
to a term, condition, or privilege of employment. As a result,
the Agency dismissed claim (1) for failure to state a claim. As to
Complainant’s harassment claim, the Agency determined that the totality
of the circumstances and actions complained of, even if true, were not
sufficiently severe or pervasive to establish a hostile work environment.
As a result, the Agency dismissed the complaint for failure to state
a claim.
CONTENTIONS ON APPEAL
On appeal, Complainant notes that the Agency’s decision contains
incorrect information from his complaint. Specifically, Complainant
asserts that the decision incorrectly identified facts in his case,
issues he alleged, and applied the wrong analysis. Accordingly,
Complainant requests that the Commission reverse the Agency’s dismissal.
ANALYSIS AND FINDINGS
As an initial matter, the Commission agrees with Complainant that the
Agency included numerous factual errors in its dismissal decision.
Specifically, the Agency incorrectly identified Complainant as a
Mail Handler at the Post Office in Horsham, Pennsylvania. Further,
Complainant’s complaint revolved around a Letter of Warning issued
for “Conduct Unbecoming of a Postal Employee” and “Violation of
the Zero Tolerance Policy.” Finally, the Letter of Warning was dated
November 23, 2010, not November 17, 2010.
Nonetheless, the Agency dismissed claim (1) for failure to state a claim
finding that the Letter of Warning was reduced to an official discussion
rendering Complainant not aggrieved. The record contains an undated
grievance form indicating that the Letter of Warning would be reduced to
an official discussion after three months pending no further discipline.
The Commission finds that at the time Complainant sought EEO counseling,
he was aggrieved by the Letter of Warning, and the complaint therefore
states a claim. The question then becomes whether the complaint is moot
pursuant to 29 C.F.R. §1614.107(a)(5).
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 of 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.
The Commission finds that claim (1) was not rendered moot, at a minimum,
because a fair reading of the record reflects that Complainant requested
compensatory damages. The Commission has 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. U.S. Postal Serv.,
EEOC Appeal No. 01923399 (Nov. 12, 1992); request to reopen denied. EEOC
Request No. 05930386 (Feb. 11, 1993). Consequently, where, as here,
a complainant requests compensatory damages during the processing of
his 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 from Complainant.
Should Complainant prevail in his claim, the possibility of an award
of compensatory damages exists, and Complainant's claim is not moot.
See Glover v. U.S. Postal Serv., EEOC Appeal No. 01930696 (Dec. 9,
1993). Further, there is no clear evidence indicating whether the
Letter of Warning was ever actually reduced to an official discussion.
Accordingly, the Commission finds that the Agency’s dismissal of this
claim was improper.
Finally, in light of the Commission’s remand of claim (1),
the Commission declines to fragment the complaint by addressing
Complainant’s harassment claim on appeal. Accordingly, the Commission
remands the entire complaint for further processing.
ORDER (E0610)
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 (K0610)
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.
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 (Nov. 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 (R0610)
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 (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
February 2, 2012
Date
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0120112589
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112589