05A00290_r
02-21-2002
Robert R. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert R. Williams v. United States Postal Service
05A00290
February 21, 2002
.
Robert R. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A00290
Appeal No. 01990037
Agency No. HO-000-0078-97
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On December 4, 1999, Robert R. Williams (complainant) timely requested the
Equal Employment Opportunity Commission (the Commission) to reconsider
the decision in Robert R. Williams v. United States Postal Service,
EEOC Appeal No. 01990037 (November 5, 1999). EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. � 1614.405(b). The party requesting
reconsideration must submit written argument or evidence which tends
to establish one or more of the following two criteria: the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or the decision will have a substantial impact on the policies,
practices or operations of the agency. Id. For the reasons set forth
herein, complainant's request is granted.
In the previous decision, the Commission dismissed complainant's appeal
as untimely. On request for reconsideration, complainant provides a copy
of a registered mail receipt indicating that he mailed his appeal to the
Commission on August 24, 1998.<1> Based on this evidence, complainant
contends that his appeal was timely.
TIMELINESS OF APPEAL
Upon review, the Commission finds that its prior decision involved
a clearly erroneous interpretation of material fact -- complainant
submitted his appeal on August 24, 1998, not on September 29, 1998.
Therefore, complainant's appeal was timely. The Commission will address
whether the agency's July 21, 1998 dismissal was proper below.
REVIEW OF AGENCY'S DISMISSAL
Complainant filed a formal complaint dated April 15, 1997, alleging
discrimination on the bases of race (African-American), age, and in
reprisal for prior EEO activity. His claims concerned the circumstances
surrounding the agency's plan to reassign him from an office in New Haven,
Connecticut to Hartford, Connecticut. By letter dated September 16,
1997, the agency accepted the complaint for investigation, but later
issued its July 21, 1998 final decision to dismiss the complaint for being
moot. In its dismissal, the agency found that complainant never worked
in the Hartford office, and likely never would, due to an on-the-job
injury that restricted complainant from driving the distance required
to reach his new office. According to the agency, it sent complainant a
car and driver to transport him to and from Hartford when he was needed.
At all other times, according to the agency, complainant continued to
work in New Haven.
On appeal, complainant argues that the agency never drove him to Hartford.
Further, he contends that his official duty station is listed as Hartford,
and that he suffered as a result. Complainant explains that he requested
approval to attend a training class near Hartford, with reimbursement for
hotel and per diem expenses. According to complainant, he previously
received hotel and per diem reimbursement for past courses attended at
the same location, but was denied reimbursement in July 1998 because
his �official� duty station was listed as nearby Hartford.
The agency may dismiss claims for being moot. See 29 C.F.R. �
1614.107(a)(5). To determine whether the issues raised in complainant's
complaint are moot, the fact finder 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).
In the present complaint, the agency has not eradicated the effects of
its actions -- it appears that complainant's official duty station may
be Hartford, not New Haven. Complainant has alleged unremedied harm in
the denial of per diem as a result of the alleged change in his official
duty station. Therefore, the Commission cannot find that complainant's
claim is moot.
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to GRANT complainant's request.
The Commission's dismissal in Appeal No. 01990037 is REVERSED.
The agency's final decision also is REVERSED, and the complaint is
REMANDED for further processing. Since the Commission has not previously
addressed the agency's final decision, the parties may file a request
to reconsider as provided herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 (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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
February 21, 2002
__________________
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
______________________________
1A separate receipt card shows that the Commission received the appeal
on August 31, 1998, although there is no copy of the materials mailed
in the appeal file or on reconsideration.