01a35309
07-26-2005
Estate of Jerry L. Gibson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jerry L. Gibson v. United States Postal Service
01A35309
July 26, 2005
.
Estate of Jerry L. Gibson,<1>
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35309
Agency No. 4-H-370-0078-01
Hearing No. 250-A1-8296X
DECISION
Upon review, the Commission finds that the agency's final order dated
August 26, 2003, dismissing complainant's complaint is proper for the
reasons set forth herein.
In his formal complaint dated January 25, 2001, complainant claimed he
was subjected to discrimination on the basis of disability.
The agency accepted complainant's complaint for investigation and
determined that his complaint was comprised of the following two claims:
1. on November 8, 2000, [complainant] was advised that [he] no longer
had the option to take Route 5 as [his] primary work route; and
2. management failed to consider [his] military points when establishing
[his] seniority.
When the agency completed the investigation of complainant's complaint,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On August 5, 2003, an AJ from the Memphis District Office issued an Order
of Dismissal, dismissing complainant's complaint for failure to locate
and for failure to cooperate, pursuant to 29 C.F.R. �� 1614.107(a)(6),
1614.107(a)(7), and 1614.109(b). According to the AJ's decision, notices
were sent to the agency and to the last known address for complainant;
and that the notices indicated that a settlement conference was scheduled
for July 8, 2003. While the agency made an appearance, no one appeared
on behalf of complainant. The agency discovered that complainant had
been deceased since September 2001, and filed a request for dismissal.
According to the AJ's decision, the complainant's estate was ordered to
indicate in writing on or before July 31, 2003, whether it intended to
pursue the instant EEO complaint; however, a response was not received.<2>
The agency's final action implemented the AJ's decision, dismissing the
complaint for failure to locate and failure to cooperate, pursuant to
29 C.F.R. �� 1614.107(a)(6) and 1614.107(a)(7).
Complainant's estate filed the present appeal.
While the AJ dismissed complainant's complaint for failure to locate and
failure to cooperate, we find these claims are more properly analyzed
as to whether they have been rendered moot, pursuant to 29 C.F.R. �
1614.107(a)(5). The regulation set forth at 29 C.F.R. � 1614.107(a)(5)
provides for the dismissal of a complaint when the issues raised therein
are moot. To determine whether the issues raised in complainant'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); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
In the instant case, complainant's complaint is rendered moot by his
death. Complainant is no longer employed by the agency; therefore, there
is no reasonable expectation that the alleged discrimination will recur.
In addition, we note that complainant did not request compensatory
damages in resolution of this matter. Specifically, complainant,
in his formal complaint, stated he was seeking the following remedy:
�seniority as stated two years ago by [a named agency official], on
Nov[ember] 1 and Nov[ember] 3, 2000, and option to take rural route 5
as my primary work route.�
Accordingly, for the reasons stated herein, the agency's final order
is AFFIRMED.<3>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
July 26, 2005
__________________
Date
1The record reflects that complainant has been deceased since September
2001.
2The Commission notes that the record does not contain copies of the
agency's request for dismissal or the AJ's notice to complainant's estate
to indicate whether it intended to pursue these claims.
3Because we affirm the agency's and AJ's dismissal for the reason stated
herein, we decline to address the agency's and AJ's alternate grounds
for dismissal.