U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Earnest G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120172282 Agency No. 4E-840-0023-17 DECISION Complainant filed a timely appeal with this Commission from an Agency final decision, dated May 16, 2017, dismissing a formal 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a City Carrier at the Agency's Tremonton Post Office in Tremonton, Utah. Believing that he was subjected to unlawful discrimination based on his age, Complainant filed a formal complaint on April 11, 2017. The Agency framed the claims as follows: 1. On February 16, 2017, Complainant discovered that his Postmaster had been hiding mail from Complainant's route for the previous three days during a route count; and, 2. On an unspecified dated, Complainant Postmaster threatened him by telling him to quit or transfer to another Post Office. In its May 16, 2017 decision, the Agency dismissed the formal complaint. Specifically, the Agency dismissed claim (1) as moot. The Agency reasoned that because the Postmaster retired, there was no reasonable expectation that the alleged action would recur. Further, the Agency noted that Complainant filed a grievance on the same event, which was resolved by an April 26, 2017 settlement agreement reached during pre-arbitration. The grievance agreement required the Agency to rescind the previous adjustment, re-adjust Complainant's route, and pay Complainant the equivalent of non-wage compensatory damages until the adjustment was implemented. The Agency found that because the agreement provided Complainant with "all the relief [he] would have received if he had prevailed in his complaint", the Agency concluded that Complainant was no longer an "aggrieved" employee. Regarding claim (2), the Agency dismissed the matter for failure to state a claim. The Agency found that although Complainant "may have felt threatened by the comments", no actual was taken against him. Finally, the Agency found the incident was not sufficiently severe or pervasive to create a hostile work environment. Complainant filed the instant appeal. ANALYSIS AND FINDINGS Claim (1) 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 factfinder 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. In its decision, the Agency cites Maria v. United States Postal Service, EEOC Appeal No. 0120083465 (December 4, 2008) for the proposition that because Complainant has already received all the relief should would have been entitled to if she had prevailed in her complaint. However, the instant case is clearly distinguishable. In Maria, the Complainant alleged that she was discriminated against when management improperly coded her leave, resulting in a Letter of Warning. The LOW was subsequently rescinded. See id. Here, Complainant alleges that he submitted a written request for a Special Route Test in January 2017. Complainant claims that, during the testing period, mail destined for his route was hidden by the Post Master in his office closet. The Agency's assertion that an April 26, 2017 grievance settlement has completely eradicated the effects of any alleged discrimination is not supported by the record. The Agency has provided a copy of the agreement which simply provides: "The carrier assigned to Route 1 will be compensated $10 per day from February 18, 2017 until the route adjustment is implemented." There is, however, no evidence that the route was adjusted or payment made to Complainant. Also, the grievance, and subsequent settlement, did not consider Complainant's claims of discrimination. Therefore, we find that claim (1) was not rendered moot.2 Claim (2) The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that 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. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In claim (2), Complainant alleges the Postmaster remarked that he should quit or transfer to another Post Office. The Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC Request No. 05940695 (Feb. 9, 1995). Complainant has not claimed that he suffered a personal loss or harm as a result of the comment. The alleged incident is not sufficiently severe or pervasive to state a claim of a hostile work environment. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). The Agency's dismissal of claim (2) was proper. CONCLUSION Accordingly, the Agency's dismissal of claim (1) is REVERSED and the claim is REMANDED to the Agency for further processing. The dismissal of claim (2) is hereby AFFIRMED. ORDER (E1016) The Agency is ordered to process the remanded claim (claim (1)) 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 was 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 was 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 October 3, 2017 __________________ 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 In Maria, the complainant did not request compensatory damages. Contrastingly, the Counselor's Report and complaint reflect that Complainant did seek compensatory damages in the instant case. The Commission has held that an agency must address the issue of compensatory damages when a complainant shows objective evidence that she has incurred compensatory damages, and that the damages are related to the alleged discrimination. Jackson v. U.S. Postal Serv., EEOC Appeal No. 01923399 (Nov. 12, 1992), req. for reconsideration denied, EEOC Request No. 05930306 (Feb. 1, 1993). An Agency's failure to request objective proof of the alleged damages incurred, as well as evidence connecting those damages to the adverse actions, can prevent a matter from being dismissed as moot. See Allen v. U.S. Postal Serv., EEOC Request No. 05970672 (June 12, 1998); Benton v. Dep't of Def., EEOC Appeal No. 01932422 (Dec. 3, 1993). However, the complaint presently before us is based exclusively on age. The Commission has determined that compensatory damages are not available under the ADEA. Taylor v. Department of the Army, EEOC Request No. 05930633 (January 14, 1994); Patterson v. Department of Agriculture, EEOC Request No. 05940079 (October 21, 1994). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120172282 2 0120172282