01A22990_r
08-01-2002
Donald L. Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donald L. Washington v. United States Postal Service
01A22990
August 1, 2002
.
Donald L. Washington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22990
Agency No. 1F-941-0016-02
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated April 5, 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 complaint, complainant alleged that
he was subjected to discrimination on the bases of race and disability
when his request for sick leave was denied for November 12-13, 2001,<1>
thereby resulting in loss of holiday pay for Veterans Day, 2001.
The agency dismissed the complaint stating that complainant had filed
a grievance on the same claims, which resulted in a settlement that
provided a pay adjustment to complainant for the lost pay. Accordingly,
the agency reasoned that the effects of the alleged discrimination had
been entirely eradicated and no opportunity for complainant to be denied
holiday pay for November 2001 could possibly recur. The agency dismissed
the complaint as moot, pursuant to 29 C.F.R. � 1614.107(a)(5).
On appeal, complainant states that he has been denied sick leave due
to discrimination on prior occasions and that he suffered damages as a
result of the delayed pay. In his complainant, complainant requested
"to be made whole", which the Commission interprets as a request for
compensatory damages.
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence that
he has incurred compensatory damages, and that the damages are related
to the alleged discrimination. Should complainant prevail on this
complaint, the possibility of an award of compensatory damages exists.
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 actions at issue. See Allen v. United States
Postal Service, EEOC Request No. 05970672 (June 12, 1998). As the
agency failed to address the issue of compensatory damages, we find
that dismissal 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). Moreover, we find the alleged
discrimination may recur in connection with future requests for sick
leave and holiday pay as long as complainant remains an agency employee.
Accordingly, we REVERSE the agency's decision dismissing complainant's
complaint and REMAND the complaint for further processing.
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
August 1, 2002
__________________
Date
1The agency's framing of the complaint indicated complainant had
requested leave without pay (LWOP). The EEO Counselor's report,
consistent with complainant's appeal, states complainant had originally
requested sick leave.