01983148
03-04-1999
Cheryl L. Boyd, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cheryl L. Boyd v. United States Postal Service
01983148
March 4, 1999
Cheryl L. Boyd, )
Appellant, )
)
v. ) Appeal No. 01983148
) Agency No. 4-H-370-0035-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's February 11, 1998 decision
dismissing appellant's complaint on the basis of mootness, is not proper
pursuant to the provisions of 29 C.F.R.�1614.107(e).
The record shows that appellant alleged that she had been discriminated
against on the bases of sex (female) and race (Black) when on October 23,
1997, she went into "V" time and her supervisor threatened to fire her
and not pay her.
The agency issued a final decision dismissing the complaint on the
grounds of mootness after finding that appellant had not been removed and
because she had been paid for the time in question. On appeal, appellant
contends that during the incident in question her supervisor told her
that she had messed up with the wrong person and that he would fire her.
She further contends that since said incident her supervisor has been
harassing her and that to date, she is still dealing with his harassment.
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portion thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant's complaint are 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.
A determination of whether a case is moot often turns on the second
element of the Davis test, that is, whether interim relief or events
have completely eradicated the effects of the alleged discrimination.
In this case, the agency dismissed appellant's complaint on the basis of
mootness after finding that appellant had not been removed and because
she had been paid for the time in question. Based on the foregoing,
we find that the fact that appellant has been paid and the fact that she
has not been removed rendered her complaint moot. Appellant's vague and
generalized allegations of harassment do not preclude the Commission
from finding this complaint moot. Accordingly, the agency's decision
dismissing the complaint is AFFIRMED.
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. �l6l4.604(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. 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 (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:
Mar 4, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations