Eliberto Yzaguirre, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 18, 2009
0120092431 (E.E.O.C. Sep. 18, 2009)

0120092431

09-18-2009

Eliberto Yzaguirre, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Eliberto Yzaguirre,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120092431

Agency No. 4G780007809

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated April 20, 2009, 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 pursuant to 29 C.F.R. � 1614.107(a).

At the time of the events at issue, complainant was employed as a Letter

Carrier at the agency's Brownsville, Texas Main Post Office. In an EEO

complaint dated March 26, 2009, complainant alleged that he was subjected

to discrimination on the basis of age (59) when, on December 9, 2008,

he was given a notice of seven-day suspension based on the charge of

unacceptable performance/failure to follow instructions. Complainant

was alleged to have unsafely and improperly pushed an overhead hamper

resulting in an injury to himself. In his appeal, complainant asserts

he was given the suspension because the agency is trying to get rid of

older employees.

The agency dismissed the complainant, asserting complainant was no

longer aggrieved because, as a result of a grievance complainant filed

on the same matter, the suspension was rescinded and removed from his

records and cannot be cited in any other disciplinary action. According

to the agency, the resolution of the grievance rendered complainant's

EEO complaint moot.

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 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. Upon review of the record, we agree with the

agency that the recission and expungement of the suspension through the

grievance process has rendered his EEO complaint moot. While complainant

has requested compensatory damages, we note that he has only raised an age

discrimination claim and there is no entitlement to compensatory damages

in the administrative process under the ADEA. See Falks v. Department of

the Treasury, EEOC Appeal No. 05960250 (September 5, 1996). Therefore,

we find that complainant is no longer aggrieved and his EEO complaint

has been rendered moot.

Accordingly, the agency's final decision dismissing complainant's

complaint is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

September 18, 2009

__________________

Date

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0120092431

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092431