01991893
02-07-2001
Richard B. Hulsizer, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Richard B. Hulsizer v. U.S. Postal Service
01991893
February 7, 2001
.
Richard B. Hulsizer,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991893
Hearing No. 370-98-2107X
Agency No. 4-F-940-0095-97
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final action dated November 24, 1998, dismissing his complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant filed his formal complaint on May 13, 1997, claiming
discrimination on the bases of race and in reprisal for filing prior EEO
complaints under Title VII concerning a Letter of Warning (LOW) issued
to him on February 28, 1997. The agency investigated the complaint,
and, in accordance with complainant's request, transferred the case to
an EEOC Administrative Judge (AJ) to conduct a hearing.
On August 21, 1998, the AJ issued notice to the parties regarding her
decision to grant the agency's motion to dismiss the instant complaint
on the grounds that it had been rendered moot, and subsequently entered
an Order recommending dismissal of the instant complaint. The AJ found
that the agency produced documentary evidence to show that the LOW was
rescinded and expunged from all records, and that complainant had been
transferred to another work location, which he requested as �injunctive
relief,� finding that this constituted �all the relief that is still
viable.� The AJ additionally found that complainant's evidence showed
that his compensatory damages pre-dated the issuance of the LOW, and
that his transfer precluded a recurrence of the claimed discrimination,
such that there was �no longer a live controversy to be judged.�
In its final decision, the agency dismissed the complaint on the grounds
that it had been rendered moot.
On appeal, complainant argues that his transfer resulted only because of
a Congressional inquiry he had initiated, and that the record contains
evidence that prior denials of his transfer requests were motivated by
reprisal for his prior EEO activity. In response, the agency argues
that complainant's appeal statement is not pertinent to the instant
determination, and requests that we affirm its final decision.
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.
We have carefully reviewed the record in this case and determine that
the agency properly found that the instant complaint was rendered moot
by rescission and expungement of the LOW and complainant's transfer to
another work location, notwithstanding the alleged underlying motivation
for the agency's decision to undertake these actions. We also find that
the issue of compensatory damages was properly addressed. See Jackson
v. United States Postal Service, EEOC Appeal No. 01923399 (November 12,
1992), request for reconsideration denied, EEOC Request No. 05930306
(February 1, 1993). Therefore, we find that the agency's decision to
dismiss the complaint was proper and is AFFIRMED.
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 (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
February 7, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.