0120113358
01-05-2012
Steven H. Waitzman, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Steven H. Waitzman,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120113358
Agency No. 4C-430-0021-11
DECISION
Complainant filed an appeal with this Commission from an Agency decision, dated June 3, 2011, pertaining to his 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. The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
BACKGROUND
During the relevant time, Complainant worked as a Part-time Flexible Clerk at the Agency's Mount Vernon Post Office in Mount Vernon, Ohio. Believing that he was being subjected to retaliation for his prior EEO activity, Complainant contacted an EEO Counselor on March 15, 2011. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, Complainant filed the instant formal complaint.
The Agency framed the claims as follows:
Complainant was given a pre-disciplinary interview and subsequently issued a Five-Day Suspension, dated November 9, 2010, for improper conduct.
The Agency issued a final decision dismissing the instant formal complaint on the grounds of untimely EEO Counselor contact. According to the Agency, Complainant's March 15, 2011 contact was approximately 126 after the discipline was issued on November 9, 2010. It also noted that there was no evidence that Complainant was unaware of the forty-five day time limitation.
Additionally, the matter was dismissed on the grounds of mootness. The Agency stated that, as a result of a grievance, the Suspension was expunged on January 28, 2011. Therefore, it reasoned, there was no reasonable expectation that the alleged action will recur and the interim relief completed eradicated the effects of the alleged violation. Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(5) provides that the agency shall dismiss a complaint that is moot. To determine whether the issues raised in complainant's complaint remain in dispute, 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 the interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. 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 Commission determines that the matter raised in the instant complaint was rendered moot. The matter identified therein was the subject of a grievance settlement, and the record does not reflect that Complainant requested compensatory damages. Because we affirm the dismissal for the reason stated herein, we need not address alternative grounds for dismissal.
CONCLUSION
The Agency's final decision dismissing the complaint was proper and is hereby AFFIRMED.1
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 (S0610)
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 (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 5, 2012
__________________
Date
1 The suspension, however, should be considered as evidence in support of a claim of ongoing harassment raised by Complainant in another complaint (Agency No. 4C-430-0006-11) which is being remanded to the Agency for further processing in EEOC Appeal No. 0120112469.
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0120113358
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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