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on the same matter, the suspension was rescinded and removed from his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
2
0120092431
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092431