01984408
06-24-1999
Diana Leget, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Diana Leget v. United States Postal Service
01984408
June 24, 1999
Diana Leget, )
Appellant, )
)
v. ) Appeal No. 01984408
) Agency No. 4A-100-0080-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On March 26, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated February 24, 1998, pertaining
to her 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. The Commission accepts appellant's appeal in accordance with
EEOC Order No. 960, as amended.
In her complaint, appellant alleged that she was subjected to
discrimination on the bases of race, sex, and disability when:
1. On December 17, 1997, she was placed on a different tour because she
was in a light duty status; and
2. On January 12, 1998, she requested Injury on Duty Forms and was given
the wrong forms.
The agency accepted allegation 1 for investigation and dismissed
allegation 2 pursuant to EEOC Regulation 29 C.F.R. �1614.107(a),
for failure to state a claim. Specifically, the agency noted that
appellant received the proper forms on January 13th. Consequently, the
agency found that appellant suffered no loss by the delay in receiving
the correct forms for one day.
On appeal, appellant emphasizes that she was denied the requested form
CA-1, which she eventually gained possession of the next day. Further,
appellant raises several new allegations on appeal.
While the agency dismissed allegation 2 for failure to state a claim,
the Commission finds that allegation 2 is more properly analyzed to
determine whether it is moot. 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. 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.
Appellant concedes on appeal that she received the proper form CA-1 the
next after her denied request. Accordingly, we find that appellant's
receipt of the proper forms one day after receiving the wrong forms
eradicated the effects of the alleged discrimination by the agency.
Furthermore, there is no evidence of record that the alleged violation is
likely to recur. Therefore, we find that allegation 2 is moot and the
agency's decision dismissing allegation 2 is AFFIRMED for the reasons
set forth herein.
Finally, we note that on appeal, appellant raises new allegations.
Appellant is advised that if she wishes to pursue, through the EEO
process, the additional reprisal allegations she raised for the first
time on appeal, she shall initiate contact with an EEO Counselor
within 15 days after she receives this decision. The Commission
advises the agency that if appellant seeks EEO counseling regarding
the new allegations within the above 15-day period, the date appellant
filed the appeal statement in which she raised these allegations with
the agency shall be deemed to be the date of the initial EEO contact,
unless she previously contacted a counselor regarding these matters,
in which case the earlier date would serve as the EEO Counselor contact
date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC Request
No. 05970201 (January 16, 1998).
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:
June 24, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations