01A45721_r
01-10-2005
Victor M. Casillas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Victor M. Casillas v. United States Postal Service
01A45721
January 10, 2005
.
Victor M. Casillas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45721
Agency No. 4F-926-0189-04
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision dated July 26, 2004, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
In his formal complaint, filed on July 8, 2004, complainant alleged that
he was subjected to discrimination on the bases of race, disability,
and in reprisal for prior EEO activity.
In its final decision, dated July 26, 2004, the agency determined
that complainant's complaint was comprised of eight claims, that were
identified in the following fashion:
(1) on unspecified dates, complainant was required to clock in;
(2) on unspecified dates, he was required to train more than his share
of new hires;
(3) on unspecified dates, other employees were allowed to work less than
8 hours and are paid 8 hours;
(4) on an unspecified date, his pay for .50 hours of annual leave was
not corrected;
(5) on unspecified dates, others were allowed to change their schedule
without revisions;
(6) on unspecified dates, he was forced to ride and train in Motor
Vehicle Service (MVS) Unit while Santa Ana employees were not;
(7) on unspecified dates, Ad Hocs were used out of sequence; and
(8) other employees were not required to do Powered Industrial Trucks
(PIT) training.
The agency dismissed claims (1) - (3), and (5) - (8) for failure to
state a claim, finding that complainant was not aggrieved and suffered
no measurable personal harm: i.e., no discipline was issued; there was
no monetary loss; and there were no changes in complainant's hours,
wages and/or other terms and conditions of employment.
The agency dismissed claim (4) on the grounds of mootness. The agency
determined that on June 8, 2004, complainant's pay for .50 hours
correction was completed.<1>
On appeal, complainant acknowledges that he was reimbursed .50 hours of
annual leave (claim (4)). Complainant, however, argues that he had to
file an EEO complaint in order to be reimbursed after �repeatedly asking
for the correction to be made.� Furthermore, complainant argues that
his remaining claims are ongoing; and that an injured employee is being
allowed to work in his place without proper qualifications (claim (7)).
Claims (1) - (3) and (5) - (8)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission determines that complainant has not established that
claims (1) - (3) and (5) - (8) resulted in a personal harm or loss
to a term, condition or privilege of his employment for which there is
a remedy. The agency properly dismissed claims (1) - (3) and (5) -
(8) for failure to state a claim.
Claim (4)
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.
Complainant requested to be �made whole� in his formal complaint.
On appeal, complainant acknowledges that he was reimbursed for the .50
hours of annual leave identified in claim (4). Complainant's only other
reference to this matter on appeal is that it required the pursuit of the
instant EEO complaint, as well as the passage of six months, for receipt.
The Commission determines that both prongs of the Los Angeles v. Davis
test have been met, and that the agency properly dismissed this claim
on the grounds of mootness.
Accordingly, the agency's decision dismissing claims (1) - (3) and
(5) - (8) for failure to state a claim was proper and is AFFIRMED.
The agency's decision dismissing claim (4) on the grounds of mootness
was proper and is AFFIRMED.
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 (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
January 10, 2005
__________________
Date
1In its final decision, the agency indicated that claim (4) was dismissed
for failure to state a claim. However, the agency's analysis of this
claim was focused exclusively on whether or not the matter identified in
claim (4) has been rendered moot. The Commission therefore determines
that despite the agency's reference to dismissal of this claim for failure
to state a claim, claim (4) was dismissed on the grounds of mootness.