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.