0120072117
08-30-2007
Timothy M. Lawson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Timothy M. Lawson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072117
Agency No. 4A-110-0162-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 16, 2007, 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.
During the pertinent period, complainant was employed as a Customer
Service Manager at a New York facility of the agency. On August 4, 2006,
complainant initiated contact with an Equal Employment Opportunity
(EEO) Counselor and, subsequently, filed a formal EEO complaint,
alleging that, since September 2005, the agency subjected him to
hostile work environment harassment on the basis of national origin
(mixed German-Canadian-Dutch-Irish). To support his harassment claim,
complainant alleged that management (1) on December 24, 2005, removed
him from an Acting Area Manager detail, (2) in March and May 2006,
attempted to break up complainant's staff, (3) on April 21, 2006, issued
him a Letter of Direction, (4) stated in an e-mail that it was out to get
complainant, (5) on June 21, 2006, issued him a Letter of Warning (LOW),
(6) monitored complainant's work hours, and (7) on February 28 and June 5,
2006, failed to select him for a Route Examiner & Adjustment Team Leader
position. Complainant stated that, on June 19, 2006, an Acting Manager
(S1) informed him that the facility Postmaster and Senior Area Manager
"were out to get him" and planned to take disciplinary action against him.
Complainant explained that the June 21 LOW supported S1's contention
and put him on notice of management's intentions. In his complaint,
complainant requested compensatory damages as a remedy.
On December 22, 2006, the agency issued complainant his investigative
file and notified him of his right to request a hearing before an EEOC
Administrative Judge (AJ) or an immediate final decision by the agency.
On March 16, 2007, the agency issued a final decision, stating that
complainant failed to respond to its December 22 notice and dismissing
alleged incidents (1) through (4) and (7) for untimely EEO contact
and (5) as essentially moot. Specifically, regarding the former, the
agency stated that the alleged incidents were discrete acts and did
not constitute a continuing violation. Regarding the latter, (5), the
agency stated that the LOW was removed and rescinded from complainant's
file so it was no longer at issue. Lastly, the agency accepted (6)
for investigation and found that complainant failed to establish that
the legitimate, nondiscriminatory reason articulated by the agency for
its actions was pretext.
The instant appeal from complainant followed. On appeal, complainant
stated that the acts he alleged constitute a continuous violation and
that, contrary to the agency's contention, he did request a hearing in a
timely manner. Complainant provided a signed hearing request form that
is dated January 19, 2007 and postal receipts indicating that he sent
mail to the New York District Office of the Commission and the agency
hearing request office, on January 20 and 22, respectively.
First, we find that the agency appropriately dismissed (1) through (4)
and (7). We agree that (1) and (7) are "discrete acts" that occurred
beyond the 45-day time frame provided in 29 C.F.R. � 1614.105(a)(1)and
are not rendered timely by (5) and (6), which are within the statutory
time-frame. See National Railroad Passenger Corp. v. Morgan, 536
U.S. 101 (2002). Second, pursuant to 29 C.F.R. � 1614.107(a)(1),
we find that, in alleging the actions in (2) through (4), complainant
failed to present a harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy or show that he
was subjected to action sufficiently severe or pervasive to alter the
conditions of his employment.
Next, we find that the agency inappropriately dismissed (5). We conclude
that the agency failed to satisfy at least one factor of mootness -
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. Dep't of the Navy, EEOC
Request No. 05970343 (July 10, 1998). Here, complainant requested
compensatory damages and 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. U. S. Postal Service, EEOC Request No. 05970672 (June 11,
1998); Benton v. Dep't 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 (5) was rendered
moot was improper and (5) should be remanded for proper processing.
See Estate of Routson v. National Aeronautics and Space Administration,
EEOC Request No. 05970388 (March 18, 1999). With regard to (6), we find
that complainant showed that he requested a hearing before an EEOC AJ
in a timely manner and that the agency did not act in accordance with 29
C.F.R. � 1614.108(g) when it did not submit the involved complaint file
to the EEOC New York District Office and issued a final decision instead.
After a careful review of the record, we AFFIRM the final agency decision
as to (1) through (4) and (7), REVERSE the final agency decision as to
(5), and VACATE the decision as to (6). We REMAND (5) and (6) for
processing consistent with this decision and the order below.
ORDER
The agency shall submit to the Hearings Unit of the New York District
Office a copy of the complaint file in Agency No. 4A-110-0162-06,
including copies of complainant's request for a hearing for Agency
No. 4A-110-0162-06 and a copy of this decision. The agency shall provide
written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Unit.
Following the Administrative Judge's decision consistent with 29 C.F.R. �
1614.109, the agency shall issue a final decision in accordance with 29
C.F.R. � 1614.110.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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 30, 2007
__________________
Date
2
0120072117
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072117