0120120277
03-16-2012
Edward L. Gatson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Edward L. Gatson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120120277
Agency No. 4G-760-0098-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
September 16, 2011 decision, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed, but pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim.
BACKGROUND
During the period giving rise to this complaint, Complainant worked
as a City Letter Carrier at the Agency’s Glencrest Station facility
in Fort Worth, Texas. On June 9, 2011, the Agency issued Complainant a
Letter of Warning for the use of unauthorized overtime and failure to
follow instructions.
On August 26, 2011, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the basis of age (64)
when the Agency issued Complainant a Letter of Warning, but the Agency
did not issue similarly situated younger employees a Letter of Warning.
The record shows that the Letter of Warning was rescinded and the record
expunged as the result of a grievance resolution. Complainant does not
seek compensatory damages and did not have an attorney. As relief, and as
stated in his EEO complaint, Complainant requests that the Agency remove
his Supervisor from her position. Complainant asserts that her removal is
required by the Agency’s Joint Statement on Violence in the Workplace.
The Agency dismissed the complaint as moot. The Agency reasoned that
the matter had been fully resolved through a negotiated grievance process
and that Complainant received all of the relief to which he was entitled.
The Agency also concluded that there was no reasonable expectation that
the violation would recur because it is unlikely that Complainant would
willfully commit the infraction that led to the discipline.
On appeal, Complainant argues that the matter is not moot because the
Agency has not terminated the employment of his supervisor from her
position and the action will recur as long as the supervisor continues
to be employed in her position.
ANALYSIS AND FINDINGS
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 fact finder 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. This matter
is not moot because the first element is not met.
In this case, Complainant claims that his supervisor selectively subjected
him for a disciplinary letter because of his age and is likely to do
so again. He has stated a claim under the ADEA.
The record shows, however, that Complainant has already received the
relief that he requested and which would be available to him had he
prevailed.
Complainant now seeks more than he would be entitled to under the 29
C.F.R. Part 1614 complaint process – enforcement of the Agency’s
policy on Violence in the Workplace through the termination of his
supervisor’s employment. This is outside the scope of the relief
authorized for relief for an employee under the Commission’s regulation
at 29 C.F.R. Section 1614.501(c).
We find that Complainant failed to show that he is still aggrieved
as a result of Letter of Warning, and further find that there is no
remedial relief available for Complainant on this claim. See Moreno
v. Department of the Treasury, EEOC Request No. 05940139 (October 28,
1994) and Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Consequently, the Commission finds that the complaint
was properly dismissed, but for failure to state a claim.
CONCLUSION
Accordingly, we AFFIRM the dismissal of Complainant's complaint, albeit
for different reasons than those articulated by the Agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 16, 2012
__________________
Date
2
0120120277
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120277