Gerald A. Wood, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 7, 2000
01992166 (E.E.O.C. Apr. 7, 2000)

01992166

04-07-2000

Gerald A. Wood, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Gerald A. Wood, )

Complainant, )

)

v. ) Appeal No. 01992166

) Agency No. 4-E-800-0172-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On January 22, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by him on January

7, 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. and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> In his complaint,

complainant alleged that he was subjected to discrimination on the bases

of sex (male), age, and in reprisal for prior EEO activity when on March

30, 1998, complainant was placed in emergency placement-without-pay

status.

Originally, the agency accepted the complaint on August 21, 1998.

On December 28, 1998, the agency rescinded its acceptance, and issued a

final decision dismissing the complaint for failure to state a claim.

Specifically, the agency found that complainant filed a grievance

concerning the same matter. The grievance was resolved by an agreement

dated April 29, 1998, stating that:

Complainant would resign voluntarily;

Complainant would not seek re-employment with the agency;

Complainant would be granted administrative leave for the sixty-nine hours

from March 31, 1998 through April 10, 1998, at a straight-time pay rate;

Complainant would be paid for all unused annual leave; and

Complainant shall be entitled to all benefits of voluntarily separated

employees.

Based on the agreement, the agency reasoned that complainant suffered

no cognizable harm, and was not aggrieved.

On appeal, complainant argues that he clearly suffered harm when his

job was taken away after twelve years.

In his formal complaint, dated August 3, 1998, complainant requested

that he be returned to his job, given back-pay, and $25,000 in punitive

damages. In an EEO Investigative Affidavit, complainant explained

that his union representative suggested that he resign to avoid losing

retirement benefits. He laments that he �had no backing from the

union.�<2>

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

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an

agency shall dismiss a complaint that fails to state a claim. An agency

shall accept a complaint from any aggrieved employee or applicant for

employment who believes that he or she has been discriminated against by

that agency because of race, color, religion, sex, national origin, age or

disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's

federal sector case precedent has long defined an "aggrieved employee"

as one who suffers a present harm or loss with respect to a term,

condition, or privilege of employment for which there is a remedy.

Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 22,

1994).

Complainant clearly was aggrieved when he was placed on emergency off-duty

status. The analysis from the agency's FAD concerns whether there is

any further remedial relief available for complainant. Therefore, the

Commission finds that the claim is more properly analyzed for whether

it has been rendered moot by the grievance resolution agreement.

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

cited as 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.

The violation will not recur because complainant voluntarily resigned

from employment with the agency. The FAD addressed complainant's claims

for damages in his formal complaint - complainant received back-pay

for the period he was placed on emergency off-duty status. Also,

punitive damages are not available to federal employees. See Henderson

v. Department of the Treasury, EEOC Request No. 05940920 (April 7, 1995);

Walker v. Department of the Army, EEOC Petition No. 04970009 (January

5, 1998). Therefore, the Commission finds that complainant has received

all relief to which he would be entitled. The effects of the alleged

discriminatory act -- placing complainant in off-duty status -- has been

completely eradicated by the terms of the grievance resolution agreement.

CONCLUSION

Accordingly, the agency's dismissal is 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

April 7, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On 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.

2However, the Commission notes that complainant never argued that he

was coerced into the grievance resolution agreement.