Clarence S. Powell, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01993335 (E.E.O.C. Mar. 16, 2000)

01993335

03-16-2000

Clarence S. Powell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Clarence S. Powell, )

Complainant, )

)

v. ) Appeal No. 01993335

) Agency No. 4D-230-0039-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On March 18, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on February 17,

1999, pertaining to his 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<1> In his complaint, complainant alleged that

he was subjected to discrimination on the basis of reprisal (prior EEO

activity) when on October 7, 1998, he was issued a Letter of Warning

for unsatisfactory attendance.

The agency dismissed complainant's complaint pursuant to Volume

64 Fed. Reg. 37,644, 37, 656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(5)), as moot. The record indicates

that complainant filed a grievance concerning the Letter of Warning

which resulted in an agreement by the agency to remove the Letter

from complainant's personnel file. In its final decision (FAD), dated

February 17, 1999, the agency found that as a result of the grievance,

all effects of the alleged discrimination had been eradicated by and

that there was no expectation that the alleged violation would recur.

EEOC Regulation 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.

In the instant matter, the record contains a copy of a grievance

settlement dated October 28, 1999, in which the agency agrees to

reduce complainant's Letter of Warning to an official discussion.

Upon review, we find that the agency's decision dismissing complainant's

complaint as moot was proper. It is the decision of this Commission

that the reduction of the Letter of Warning to an official discussion

constituted interim relief which served to eradicate the effects of

the alleged discrimination. The Commission has previously held that

a Letter of Warning reduced to an official discussion no longer is

a disciplinary action. Gafforino v. USPS, EEOC Request No. 05910847

(December 30, 1991). Moreover, we find that there is no reasonable

expectation that the violation will recur. The agency's decision is

hereby AFFIRMED for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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:

March 16, 2000

_________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ ___________________________

Date Equal Employment Assistant1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.