01A04853
02-28-2001
Phillip E. Moody, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Phillip E. Moody, Jr. v. United States Postal Service
01A04853
February 28, 2001
.
Phillip E. Moody, Jr.,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04853
Agency No. 4-H-370-0083-00
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(5).<1> Complainant
claimed that he had been discriminated against on the basis of race
when on December 6, 1999, he was issued a letter of warning (LOW).
The agency dismissed the complaint for mootness after finding that the
LOW had been removed from the records on March 4, 2000, pursuant to a
settlement agreement reached on January 4, 2000. On appeal, complainant
contends that his claim was never investigated.
EEOC Regulations provide for the dismissal of a complaint when the
issues raised therein are moot. To determine whether the issue raised
in the instant complaint is moot, it must be ascertained (1) if it can
be said with assurance that there is no reasonable expectation that
the alleged violation will recur, and (2) if interim relief or events
have completely and irrevocably eradicated the effects of the alleged
violation. See County of Los Angeles v. Davis, 440 U.S. 625 (1979).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
The agency dismissed the complaint as moot because the LOW was removed
from the files on March 4, 2000. The record reflects, and complainant
does not dispute, that the LOW was removed from his file. The record
contain a copy of the January 4, 2000 grievance settlement agreement
referenced by the agency in its final decision, that provided for the
expungement of the LOW effective March 4, 2000. We also note that on
appeal, complainant acknowledges that he was the one who �fought to clear
[his] name.� Based on the foregoing, we find that said interim relief
completely eradicated the effects of the alleged violation. We further
find that the record shows that there is no reasonable expectation that
the alleged violation will recur. Finally, we note that the record
contains no evidence indicating that complainant requested compensatory
damages as a remedy. Accordingly, the agency's final decision dismissing
the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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. 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
February 28, 2001
__________________
Date
1On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 29 C.F.R. Part 1614 in
deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.