Gregory Daniels, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 28, 1999
01976382 (E.E.O.C. Jan. 28, 1999)

01976382

01-28-1999

Gregory Daniels, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Gregory Daniels v. United States Postal Service

01976382

January 28, 1999

Gregory Daniels, )

Appellant, )

)

v. ) Appeal No. 01976382

) Agency No. 1C-191-1080-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

The Commission finds the agency's July 1, 1997 final decision (FAD)

properly dismissed appellant's allegation that he was issued a notice of

removal for prohibited reasons. However, we find the FAD's dismissal

of appellant's complaint for failure to state a claim pursuant to 29

C.F.R. �1614.107(a), in pertinent part, to be harmless error, and we

modify the FAD for the reasons set forth below.<1> Appellant has raised

no new contentions in his August 15, 1997 appeal to persuade us to the

contrary.<2>

We find that, on October 11, 1996, an arbitrator awarded appellant

reinstatement "with back pay and benefits, less any interim earnings."

We find appellant requested in his grievance, by way of relief, in

pertinent part, rescission of the removal notice, and to be "made

whole for all lost time and benefits." We find this request for

relief consistent with the relief appellant requested in his formal EEO

complaint, i.e., reinstatement and to be "made hole [sic] for all time

lost." We find that appellant's EEO complaint is subject to dismissal

for mootness, pursuant 29 C.F.R. �1614.107(e), in pertinent part.

An allegation is deemed "moot," when: (1) 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 violation. County of Los Angeles v. Davis, 440 U.S. 625

(1979). Accordingly, the FAD is hereby modified and, as modified, hereby

AFFIRMED.

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. �l6l4.604(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. 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 (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:

January 28, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1The agency had previously dismissed appellant's July 26, 1995 formal EEO

complaint in its entirety. In a prior decision, the Commission affirmed

the agency's dismissal, in part, but reversed the dismissal as to the

allegation which is the subject of the present appeal. See Daniels v. U.S.

Postal Service, EEOC Appeal No. 01960149 (October 17, 1996).

2In the absence of evidence as to when appellant received the FAD,

we have accepted his appeal as timely.