James E. Garlock, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 26, 2001
01996307_r (E.E.O.C. Jun. 26, 2001)

01996307_r

06-26-2001

James E. Garlock, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


James E. Garlock v. United States Postal Service

01996307

June 26, 2001

.

James E. Garlock,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01996307

Agency No. 4F-907-0135-99

DECISION

Upon review, the Commission finds that complainant's complaint was, in

part, improperly dismissed. Complainant claims that he was discriminated

against on the bases of sex (male) and in retaliation for filing a

workers' compensation claim. The agency defined complainant's claims

as follows:

Since July 6, 1998, complainant has not been allowed to work overtime;

On December 18, 1998, a collection run was added to complainant's route;

On April 7, 1999, complainant's request for 8 hours of sick leave was

denied; and

On January 22, 1999, complainant's private vehicle contract was taken

away.

In its July 12, 1999 decision, the agency dismissed claims 1, 2

and 4 for untimely EEO Counselor contact, pursuant to 29 C.F.R. �

1614.107(a)(2), and dismissed claim 3 for mootness, pursuant to 29

C.F.R. � 1614.107(a)(5).<1>

Regarding claim 1, complainant's overall claim is that he was

discriminated against when he was given less overtime. As part of his

claim, complainant lists several dates on appeal on which his requests

to work overtime were denied. Complainant initiated EEO Counselor

contact on April 6, 1999. We note that one of the claimed incidents

of discrimination, the denial of overtime on April 5, 1999, was within

the forty-five (45) day limitation period; therefore, we find that

complainant's EEO Counselor contact was timely with respect to claim 1,

and was improperly dismissed by the agency.

We find that complainant did not contact an EEO Counselor in a timely

manner regarding claims 2 and 4. According to the agency, the incidents

described in claims 2 and 4 occurred on December 18, 1998 and January 22,

1999, respectively, which is beyond the forty-five (45) day limitation

period for timely EEO Counselor contact. Regarding claim 2, on appeal,

complainant states that a collection run was added to his route in

January 1999, not December 18, 1998. Even if any day in January 1999

is considered the date that a collection run was added to complainant's

route, complainant's contact with an EEO Counselor would still have

been untimely.

The agency determined that claim 3 was moot pursuant to 29 C.F.R. �

1614.107(a)(5). To determine whether an issue raised in complainant's

complaint is moot, the factfinder must ascertain whether (1) it can

be said with assurance that there is no reasonable expectation that

the claimed violation will recur; and (2) interim relief or events

have completely and irrevocably eradicated the effects of the claimed

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 its decision, the agency noted that complainant's request for sick

leave for April 7, 1999 was approved on April 15, 1999. The record

confirms that complainant's request for sick leave was granted on April

15, 1999. According to the agency, there is no reasonable expectation

that this claimed violation will recur, and, interim relief or events

have eradicated the effects of this claimed violation. Complainant

makes no arguments on appeal that contradict the agency's assertions.

Accordingly, the dismissal of claim 3 as moot was proper pursuant to 29

C.F.R. � 1614.107(a)(5).

The agency's decision dismissing claim 1 is REVERSED, and, we REMAND claim

1 to the agency for further processing in accordance with this decision

and the applicable regulations. The agency's decision dismissing claims

2, 3, and 4 is AFFIRMED.

ORDER (E0900)

The agency is ordered to process the remanded claim in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claim within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

June 26, 2001

__________________

Date

1In a September 22, 1999 letter to the

Commission, the agency acknowledged that in its July 12, 1999 decision,

it stated that claim 3 was untimely and claim 4 was moot; however,

it intended to state that claim 3 was moot and claim 4 was untimely.