Sheila R. Miller, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 8, 1999
01974335_r (E.E.O.C. Apr. 8, 1999)

01974335_r

04-08-1999

Sheila R. Miller, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Sheila R. Miller, )

Appellant, )

)

v. ) Appeal No. 01974335

) Agency No. 4-G-770-0079-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On May 3, 1997, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) received by her on April 26, 1997,

pertaining to her complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. In her complaint, appellant alleged that she

was subjected to discrimination on the bases of race (African-American)

and sex (female) when on October 24, 1996, appellant was given a direct

order to case her mail using the two bundle system, but all of the men

were allowed to use the one bundle system.

The agency dismissed the allegation pursuant to EEOC Regulation 29

C.F.R. �1614.107(a), for failure to state claim. Specifically, the

agency found that appellant was not aggrieved because her supervisor

ordered all employees with two bundle cases to use the two bundle system,

but retracted her order later that same day. Further, the agency found

that appellant was speaking with her union steward when her supervisor

rescinded her earlier order. Nonetheless, appellant's supervisor

claimed to have told appellant the next day that appellant could case

her mail using the one bundle system if she preferred. Consequently,

the agency found that appellant did not suffer harm to a term, condition

or privilege of employment.

Appellant provided no argument on appeal.

Upon review, we find that appellant's complaint is more appropriately

dismissed as moot. EEOC Regulation 29 C.F.R. �1614.107(e) provides

for the dismissal of a complaint, or portions thereof, when the issues

raised therein are moot. To determine whether the issues raised in

appellant'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). When such circumstances exist, no relief is available and no

need for a determination of the rights of the parties is presented.

Appellant's supervisor retracted her instructions for appellant to sort

her mail by using the two bundle system, and thereby eradicated the

effects of the alleged discrimination. Further, the Commission finds

that there is no reasonable expectation that the alleged violation will

recur. Therefore, appellant's complaint is properly dismissed as moot.

CONCLUSION

Accordingly, the agency's decision to dismiss appellant's complaint is

AFFIRMED for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

April 8, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations