01A25084_r
05-22-2003
William A. Bailey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William A. Bailey v. United States Postal Service
01A25084
May 22, 2003
.
William A. Bailey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A25084
Agency No. 4E-890-0058-02
DECISION
On April 24, 2002, complainant filed an EEO complaint wherein he claimed
that he was discriminated against on the basis of his age (53) when
he was issued a Notice of Removal charging him with Failure to Follow
Instructions/Failure to Report an Accident. The Notice of Removal was
subsequently reduced to an official discussion and was expunged from
complainant's record. As relief, complainant requested an award of
compensatory damages.
In its decision dated August 21, 2002, the agency dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(1), on the grounds of failure to
state a claim, and 29 C.F.R. � 1614.107(a)(5), on the grounds of mootness.
With regard to its dismissal on the grounds of failure to state a claim,
the agency determined that complainant failed to allege any unresolved
personal injury or concrete effect on his employment status as a result
of the alleged discrimination. As for its dismissal on the grounds of
mootness, the agency stated that the Notice of Removal was expunged from
complainant's record.
On appeal, complainant contends that the Notice of Removal caused him
pain and suffering in terms of a loss of self-esteem and a feeling of
humiliation. Complainant reiterates his claim for compensatory damages.
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides in relevant
part that prior to a request for a hearing, an agency shall dismiss
an entire complaint that is moot. To determine whether the issues
raised in a complaint are moot, it must be ascertained (1) if it can be
said with assurance that there is no reasonable expectation that the
alleged violation will recur, and (2) if the interim relief or events
have completely and irrevocably eradicated the effects of the alleged
violation. See County of Los Angeles v. Davis, 440 U.S. 625 (1979).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
The agency determined that the instant complaint is moot because the
Notice of Removal was reduced to an official discussion and expunged
from complainant's record. Complainant does not challenge the agency's
assertion regarding the expungement of the Notice of Removal. We note
that as a result of the Notice of Removal, complainant asserts that he
has experienced pain and suffering in terms of a loss of self-esteem
and humiliation, and for such, he is requesting compensatory damages.
However, the Commission has determined that compensatory damages are
not available under the Age Discrimination in Employment Act. Taylor
v. Department of the Army, EEOC Request No. 05930633 (January 14, 1994).
Accordingly, the agency's decision to dismiss this complaint on the
grounds of mootness 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
May 22, 2003
__________________
Date