U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shayne K,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120180531 Agency No. 1E-801-0045-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 26, 2017, dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a General Expeditor at the Agency's facility in Denver, Colorado. On July 11, 2017, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On October 10, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), disability (injured veteran), and age (61) when: on April 15, 2017, his position with the Agency was abolished and a junior employee was allowed to remain in Complainant's place. In his formal complaint, and in his statement on appeal, Complainant contends that when he was informed on April 15, 2017 that his positon had been abolished, he asked if a junior clerk working in his area would also be removed since Complainant's section had been eliminated due to the needs of the Agency. According to Complainant, as he was moved out of his abolished section on April 15, 2017, an Agency official advised him that the junior clerk would be removed from the section as well. Complainant indicates that he had no reason to suspect discrimination on April 15, 2017. Complainant further indicates that it was not until he learned on June 14, 2017 from a former-coworker that the junior employee in Complainant's section had never been removed. On appeal, Complainant also avers that he was unaware of the time limitations for timely contacting an EEO Counselor. Moreover, he states that he did not suspect discrimination until June 14, 2017 when he discovered that while he had been removed from his abolished position, a junior employee was allowed to remain. In its October 26, 2017 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2). Alternatively, the Agency determined that the instant matter could also be dismissed as moot in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(5). This appeal followed. ANALYSIS AND FINDINGS Dismissal: Untimely EEO Counselor Contact EEOC Regulation 29 C.F.R. § 1614.05(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). The record in this matter contains a copy of EEO Poster 72 as well as an affidavit from an Agency official attesting that a poster displaying relevant time limitations for contacting an EEO Counselor was displayed at Complainant's work place. Complainant is therefore assumed to have had notice of the time limits for contacting an EEO Counselor regarding his claims of discrimination. Therefore, we are not persuaded by Complainant's argument that he was unaware of the time limitations for contacting an EEO Counselor in a timely manner. However, we are persuaded by Complainant's assertions that warrant an extension of the time limit for initiating EEO Counselor contact. Complainant identified a specific incident; a telephone call from a co-worker on June 14, 2017 informing him that the junior clerk had never been removed, that caused him to reasonably suspect discrimination. Complainant's contact of an EEO Counselor on July 11, 2017 occurred within 45 days of this June 14, 2017 date, when he first reasonably suspected discrimination. Dismissal: Mootness 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. Department 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. Upon review of the record, we find that the instant complaint has not been rendered moot. The Agency determined that a grievance settlement provided for Complainant to be returned to her bid position with the Agency. However, we note that in its final decision, the Agency acknowledged that Complainant had requested compensatory damages, but that Complainant failed to identify damages incurred by him due to the Agency's alleged discriminatory acts. We have held that an agency must address the issue of compensatory damages when the complainant presented objective evidence that she incurred compensatory damages and that the damages were related to the alleged discrimination. See Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992); request to reopen denied, EEOC Request No. 05930386 (February 11, 1993). Consequently, where, as here, a complainant requests compensatory damages during the processing of her complaint, the agency is obliged to request from the complainant objective evidence of such damages. In this case, the Agency determined that Complainant failed to identify incurred damages. However, there is no indication that the Agency requested objective evidence of compensatory damages from Complainant Should Complainant prevail in his claim, the possibility of an award of compensatory damages exists, and complainant's claim is not moot See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993). CONCLUSION The Agency's dismissal of the instant complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing consistent with the ORDER below. ORDER (E1016) 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 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 (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 (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 February 28, 2018 __________________ 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 0120180531 6 0120180531