___________________, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0120112489 Agency No. 4H-300-0109-11 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated March 2, 2011, dismissing her complaint of unlawful employment discrimination. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. for failure to state a claim. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Distribution Clerk in the Agency’s Sandy Springs Finance Unit in Atlanta, Georgia. On February 17, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity (arising under an EEO statute that was unspecified in the record) when she was issued a Notice of Removal. On March 2, 2011, the Agency issued a final decision dismissing the complaint pursuant to § 1614.107(a)(5) for being moot and for being a proposal to take a personnel action. The Agency reasoned that the removal was never effected because it was rescinded through a grievance settlement which completely and irrevocably eradicated the effects of the alleged reprisal. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency’s legal analysis was flawed and inconsistent with the Commission’s position on reprisal claims. Complainant also reiterates her claim that the Agency is in breach of a July 21, 2010 settlement agreement into which she and the Agency entered. ANALYSIS AND FINDINGS A fair reading of the complaint reveals that Complainant claims that the Agency issued her a Notice of Removal almost immediately after it entered into the July 21, 2010 agreement to settle Agency No. 4H-300-0257-10. The Agency argues that Complainant is not aggrieved by the notice of removal and therefore that the complaint fails to state a claim because the notice was withdrawn in connection was a grievance settlement. The Agency’s position is not well taken. The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, complainant must allege that: 1) she was subjected to an action which a reasonable employee would have found materially adverse; and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. While trivial harms would not satisfy the initial prong of this inquiry, the significance of the act of alleged retaliation will often depend upon the particular circumstances. See also EEOC Compliance Manual, No. 915.003 (May 20, 1998) (any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity states a claim). Complainant has established a viable, harassment claim based upon reprisal, as Complainant was issued a Notice of Proposed Removal. The threat of removal from employment, even if not ultimately acted upon, is adverse and would dissuade a reasonable employee from making or supporting a charge of discrimination. The Agency also argues that the complaint was properly dismissed as moot. Here too the Agency is mistaken. 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. Dep't 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 complaint has not been rendered moot because a fair reading of Complainant's requested remedies in her formal complaint reflects that she has requested compensatory damages. When a complainant requests compensatory damages, the agency has a duty to address the issue of compensatory damages. In this case, the Agency did not address the issue of compensatory damages. If Complainant were to prevail, the possibility of an award of compensatory damages exists, rendering Complainant's formal complaint not moot. Finally, review of the complaint file establishes that Complainant made a good faith effort to bring a settlement breach allegation to the attention of the Agency’s Manager for compliance and appeals in the Southeast area as well as to the Commission’s attention on appeal. There is no evidence in the record that the Agency has responded to this claim of breach. CONCLUSION Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly, the Agency's final decision dismissing Agency No. 4H-300-0109-11 is reversed. In addition, the Agency has failed to address Complainant’s claim that it is breach of the July 21, 2010 agreement that settled Agency No. 4H-300-0257-10. The complaint and the breach allegation are hereby remanded to the Agency for further processing in accordance with this decision and the Order below. ORDER (E0610) The Agency is ordered to process Agency No. 4H-300-0109-11 in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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. The Agency is also ordered to process Complainant’s August 17, 2010 allegation that the Agency is in breach of the agreement that settled 4H-300-0257-10 in accordance with 29 C.F.R. § 1614.504. The Agency shall acknowledge to the Complainant that it has received the breach claim within thirty (30) calendar days of the date this decision becomes final. A copy of the Agency’s letters of acknowledgment to Complainant and a copy of the notice that: (1) transmits the investigative file and notice of rights; and (2) the Agency’s determination with regard to the settlement agreement 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 (November 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 January 27, 2012 __________________ Date 2 0120112489 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 5 0120112489