01A61080
04-19-2006
Brian T. Mills, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brian T. Mills,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61080
Agency No. 4H-327-0149-05
DECISION
The complainant filed a timely appeal with this Commission from the
agency's decision dated October 28, 2005, 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.
The complainant claimed that he was subjected to discrimination based on
his sex (male) when he was instructed by a supervisor not to use the Post
Office Annex as a stop for using the restroom when he was on his route.
He was instructed to use a restroom in a public park instead, which the
complainant stated was very dirty. According to the complainant, he had to
deviate just two blocks from his route to use the annex, and four blocks to
use the public park restroom. This above instruction was given in late
June 2005 or early July 2005, and was rescinded about one or two weeks
after being given.
The final agency dismissed this matter pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. We find the matter is more
appropriately subject to dismissal under 29 C.F.R. �1614.107(a)(5) for
being moot.
The U.S. Supreme Court has held that a discrimination complaint is moot
when: (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 violation. County of Los Angles v. Davis, 440 U.S. 625, 631(1979).
When such circumstances exist, no relief is available and dismissal is
proper.
Here, the instruction was rescinded and there is no reasonable expectation
that the alleged violation will recur. As the complainant does not request
compensatory damages, there is no other relief to which he may be entitled.
Accordingly, the complainant's complaint is dismissed under 29 C.F.R.
�1614.107(a)(5) for being moot.
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
April 19, 2006
__________________
Date