01984736_r
06-25-1999
William P. Gattung, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
William P. Gattung, )
Appellant, )
)
v. ) Appeal No. 01984736
) Agency No. 4-G-780-0016-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On May 27, 1998, appellant filed a timely appeal of a May 1, 1998 final
agency decision which dismissed allegation 1 of appellant's complaint
for failure to contact an EEO Counselor in a timely manner and allegation
2 on the grounds of mootness.
In its final agency decision, the agency identified the allegations
of appellant's February 23, 1998 complaint as whether appellant was
discriminated against on the basis of national origin (German-American)
and subjected to harassment when: 1) on July 25, 1997, appellant was
required to submit medical documentation; 2) on August 22, 1997, appellant
was issued a letter of warning; 3) on August 27, 1997, appellant was
subjected to a one-day route check; 4) on August 29, 1997, appellant
became aware that his time card was falsified; and 5) on September 10,
1997, the Postmaster slapped appellant on his back with rolled-up paper.
Upon review, the Commission finds that the agency's dismissal of
allegation 1 was proper. Generally, an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter
alleged to be discriminatory. 29 C.F.R. �1614.105(a)(1). Appellant does
not argue that he was unaware of the applicable time limits. The EEO
counselor's Report reveals, and it is undisputed, that appellant
did not contact an EEO Counselor until September 18, 1997, regarding
allegation 1 which occurred on July 25, 1997. Therefore, his contact
was beyond the 45 days required for timely EEO contact. EEOC Regulation
29 C.F.R. �1614.105(a)(2) permits the time period to be extended under
certain circumstances and 29 C.F.R. �1614.604(c) provides that the time
limits in Part 1614 are subject to waiver, estoppel and equitable tolling.
However, appellant has not offered justification sufficient to extend
the time limit.
The Commission finds that the agency's dismissal of allegation 2 was
also proper. EEOC Regulation 29 C.F.R. �1614.107(e) requires the agency
to dismiss a complaint, or portion thereof, which is moot. A complaint
is moot and a person is no longer aggrieved when it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and interim relief or events have completely
and irrevocably eradicated the effects of the alleged violation. When
both conditions are satisfied, neither party has a legal, cognizable
interest in the final determination of the underlying questions of
fact and law. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).
Upon review, the Commission finds that the conditions of the Davis test
have been satisfied. The record contains an October 17, 1997 South
Texas Area Resolution Team (START) Settlement between the agency and
the union in which appellant's grievance regarding the letter of warning
was sustained and the letter of warning purged from appellant's official
personnel file. In addition, the record also contains an October 28, 1997
Memorandum from the Postmaster to the Senior Labor Relations Specialist
directing that the letter of warning be removed from appellant's records
pursuant to the START settlement. There is no record evidence that
the alleged violation will recur nor is there any record evidence that
further relief would be available to appellant if he were to prevail on
the merits of allegation 2. Therefore, allegation 2 is moot.
Consistent with our discussion herein, the agency's final decision
is AFFIRMED.
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. 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 (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:
June 25, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations