01983143
03-17-1999
Tom J. Martin, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Tom J. Martin v. United States Postal Service
01983143
March 17, 1999
Tom J. Martin, )
Appellant, )
)
)
v. ) Appeal No. 01983143
) Agency No. 4E-590-1020-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision ("FAD") concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. and �501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq., . The final agency decision
was dated March 5, 1998. The appeal was postmarked March 12, 1998.
Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency's dismissal of the complaint
on the grounds that it fails to state a claim and that it is moot was
proper.
BACKGROUND
The record indicates that on October 16, 1995, appellant initiated
contact with an EEO Counselor regarding his complaint. Informal efforts
to resolve concerns were unsuccessful. On December 1, 1995, appellant
filed a formal complaint, alleging that he was the victim of unlawful
employment discrimination on the basis of retaliation and a perceived
mental handicap when:
The agency implemented an involuntary salary offset and had $507.41
deducted from his salary on October 11, 1995 and November 30, 1995.
The appellant requested a hearing and the matter was referred to an
Administrative Judge for handling. The Administrative Judge remanded
the case to the agency for it to decide whether the appellant was an
aggrieved party.
On March 5, 1998, the agency issued a final decision dismissing
appellant's complaint for failure to state a claim and because the
claim was moot. Specifically, the agency found that it had reimbursed
the amounts deducted from the appellant's pay on October 30, 1995 and
November 2, 1995 and therefore, he was no longer an aggrieved employee and
had suffered no harm. The agency further contends that the appellant's
claim that he should be reimbursed for time spent on an administrative
proceeding under the Debt Collection Act is not a remedy available under
Title VII.
The appellant does not dispute that he was reimbursed the amounts
originally taken from his pay but argues that he suffered inconvenience
as a result of the involuntary payroll deduction because he was unable
to use the money to pay his bills. He also states that the agency has
the ability to reinstitute its debt collection efforts even if it has
abandoned them for the time being.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. EEOC Regulation 29 C.F.R. �1614.107(e) provides for the
dismissal of a complaint, or portions thereof, when the issues raised
therein are moot. 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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
To determine whether the issues raised in appellant'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). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.
We agree with the agency that the appellant is no longer an aggrieved
party because the action which gave rise to the complaint has been
rescinded and the appellant has been made whole by the agency's
reimbursement of amounts it took by payroll deduction. By these actions it
appears the agency has substantially fulfilled the appellant's requested
relief which he states is to " dismiss all past, present and future
efforts to collect any and all alleged debts".
The appellant is correct that there remains the possibility that debt
collection efforts could resume in the future because the parties have
not resolved the underlying monetary dispute between them. This kind of
future possibility does not create a present cause of action for which
there is a remedy.
CONCLUSION
Accordingly, we AFFIRM the agency's dismissal of the complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 17, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations