01A22368
07-03-2002
Gary B. Weis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Gary B Weis v. United States Postal Service
01A22368
July 3, 2002
.
Gary B. Weis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01A22368
Agency No. 4E-970-0195-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the FAD.
In a formal EEO complaint dated October 15, 2001, complainant alleged
that he was the victim of unlawful employment discrimination on the
basis of age (D.O.B. 6/19/48) and disability (Chronic Esophogeal
Reflux) when on August 20, 2001, he received a Letter of Warning (LW)
for irregular attendance and failure to report to work on time. An EEO
Dispute Resolution Specialist's (DRS) Inquiry Report, dated October 17,
2001, revealed that the complainant's supervisor rescinded the LW after
the Attendance Support Office (ASO) approved complainant's request for
sick leave pursuant to the Family Medical Leave Act (FMLA).
In its FAD dated February 14, 2002, the agency dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(5), on the grounds that the complaint
was rendered moot because complainant's supervisor rescinded the LW.
In response to the FAD, complainant filed an appeal with the Commission.
Complainant contends on appeal that there is no reasonable expectation
that the violation will not recur because the agency may not approve
future requests for sick leave under FMLA.
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that an agency shall
dismiss an entire complaint when the issues raised therein are moot.
To determine whether the issues raised in a 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
the interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation. See Carton v. Social Security
Administration, EEOC Request No. 05990214 (May 20, 1999) (citing 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 finds that the agency properly determined that the
complaint is moot because complainant's supervisor rescinded the LW.
The rescission completely eradicated any record that complainant violated
the Employee and Labor Relations Manual attendance requirements, as well
as any other affects the LW may have had on complainant's employment
status. See Callis v. U.S. Postal Service, EEOC Request No. 01890162
(April 7, 1989) (stating that complainant did not suffer any adverse
consequences from a voluntarily rescinded warning). Moreover, there is
no reasonable expectation that complainant's supervisor will issue another
LW regarding complainant's irregular attendance because the supervisor is
aware that the ASO approved complainant's current request for sick leave
pursuant to the Family Medical Leave Act (FMLA). The record also reveals
that since receiving the LW on August 20, 2001, complainant has not
alleged that his supervisor engaged in discriminatory acts against him.
After consideration of the record, the Commission finds that the issues
raised in the complaint are moot. Accordingly, the FAD is AFFIRMED.
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 3, 2002
__________________
Date