01985745_r
08-27-1999
Glenn W. Lear, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Glenn W. Lear, )
Appellant, )
)
v. ) Appeal No. 01985745
) Agency No. 4K-220-0095-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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, as amended (ADEA), 29 U.S.C. �621 et seq. The final agency
decision was issued on June 16, 1998. The appeal was postmarked July
16, 1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
On May 21, 1998, appellant filed a formal complaint, alleging that he was
the victim of unlawful employment discrimination on the bases of race,
sex, and age. Specifically, appellant alleged that on March 12, 1998, he
was written up for being involved in an accident with an agency vehicle,
while other employees were not disciplined under similar circumstances.
As relief, appellant requested that his �good driver's record [be]
reinstated as if no accident ever occurred, and wiped entirely from any
postal record.�
On June 16, 1998, the agency issued a final decision, dismissing
appellant's complaint for failure to state a claim, and on the alternative
grounds of mootness. Specifically, the agency determined that the
record reflected that all files and driving records show that appellant
has been cleared of the offense; that an agency Postmaster requested
clearance of appellant's record through the agency Safety Office; that
appellant is still eligible for consideration for a safe driving award;
that an agency Safety Official checked appellant's record and found
no notation of the accident, which is confirmed by an agency document
entitled �Employee Accident History;� and that appellant is not required
to attend driver training.
Appellant presents no arguments on appeal. In response, the agency
argues that appellant's complaint was properly dismissed for the reasons
set forth in its final decision.
The record in this case contains a memorandum dated March 18, 1998,
from an agency Postmaster to an agency Safety Official. Therein, the
agency Postmaster stated that after further investigation of appellant's
accident, he determined that there was no damage to the agency vehicle
or a customer's property; and requested that the accident be �pulled
from the log.�
The record also contains a printout entitled �Display Employee Accident
History,� addressing appellant's accident history with the agency.
Therein, appellant is listed as having one vehicle accident and three
industrial accidents in the preceding five years. The accident that is
the subject of the instant complaint does not appear in the printout.
EEOC Regulation 29 C.F.R. �1614.107(e) provides that the agency shall
dismiss a complaint that is moot. To determine whether the issues raised
in appellant's complaint remain in dispute, it must be ascertained (1)
if it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur, and (2) if the interim relief or
events have completely and irrevocably eradicated the effects of the
alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625
(1979). When such circumstances exist, no relief is available and no
need for a determination of the rights of the parties is presented.
Here, appellant alleged that he was discriminatorily �written up� for an
accident involving an agency vehicle, though other employees were not
similarly disciplined. As relief, appellant requested that his �good
driving record� be reinstated. In its final decision, the agency stated
that appellant was cleared of blame for the accident; and that agency
records do not include the accident that is the subject of the instant
complaint. On appeal, appellant does not dispute the agency's findings.
The Commission notes, moreover, that the record contains a memorandum from
an agency Postmaster who recommended that the accident be �pulled from
the log,� as well as a copy of an agency printout of appellant's accident
history that contains no reference to the accident addressed in the
subject complaint. Accordingly, the Commission finds that the agency's
actions completely eradicated the effects of the alleged discrimination,
and there is no evidence of record indicating a reasonable expectation
that the alleged discrimination will recur. Therefore, the Commission
finds that the agency's decision to dismiss appellant's complaint on
the grounds of mootness was proper and is AFFIRMED.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
August 27, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 Because the Commission affirms the
agency's decision to dismiss appellant's complaint for the reason
stated herein, we find it unnecessary to address the agency's
decision to dismiss appellant's complaint on alternative grounds.