U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jackie P,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120162633 Agency No. 4E852012616 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated July 28, 2016, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Maryvale Station facility in Phoenix, Arizona. On July 11, 2016, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of age (61) when: 1. on March 30, 2016, Complainant was put on Emergency Placement in Off-Duty Status; and 2. on May 21, 2016, Complainant was issued a Notice of Proposed Adverse Action Removal for Failure to Operate a Postal Vehicle in a Safe Manner The Agency dismissed both claims for failure to state a claim. Specifically, the Agency found that Complainant filed grievances on both actions and that, with regard to claim 1, Complainant was "put in pay status until the disposition of the case and management converted 5.04 hours of Leave without Pay (LWOP) to 5.04 hours of Other Paid Leave (Administrative Leave)." With regard to claim 2, the Agency found that, pursuant to the grievance, the removal was changed to a seven-day no time-off suspension with copies of the suspension to be removed by September 30, 2017. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes he or she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age, or disabling condition. 29 C.F.R. §§ 1614.103, 106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect 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). The Agency argues that Complainant failed to state a claim with regard to claim 1 because despite being initially placed on Off-Duty Status, he was placed on pay status and was paid for the time he was off. We find, however, that the Agency has addressed the merits of Complainant's complaint without a proper investigation as required by the regulations. The Agency's explanation that Complainant was not placed on off-duty status and had his leave without pay converted to "Other Paid Leave" goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether he has stated a justiciable claim under the ADEA. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). By alleging he was placed on off-duty status because of his age, Complainant has alleged sufficient facts to state a valid claim. With regard to claim 2, we note that pursuant to 29 C.F.R. § 1614.107(a)(5), the Agency shall dismiss a claim that alleges a proposed action is discriminatory. Here, however, the Agency has conceded that disciplinary action has been finalized in this matter, with the proposed removal being changed to a seven-day suspension. By alleging that, because of his age, he was issued a removal notice that subsequently merged with a suspension, Complainant has alleged sufficient facts to state a valid claim. On appeal the Agency argues that the claims are moot. We disagree. The Agency has not shown that "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). We note that Complainant has alleged with regard to claim 1 that because of the action he was denied the opportunity to bid on a position he had sought. With regard to claim 2, Complainant was suspended for seven days without pay. The Agency further argues that Complainant did not request compensatory damages because he requested "a monetary penalty" and punitive damages are not available in Federal sector complaints. We note, however, that Complainant was represented by a non-attorney and hence we are willing to give Complainant the benefit of the doubt, particularly in light of the fact he specifically stated that he was seeking compensation "for the harm done" which is the essence of non-pecuniary compensatory damages, which are available in the Federal sector. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the dismissal and REMAND the complaint for further processing in according with this decision and the Order below. ORDER (E0610) The Agency is ordered to process the claims in the instant complaint in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision is issued. 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 is issued, 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 (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (T0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations December 15, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162633 2 0120162633