01980108
10-29-1998
Jeffrey K. Mauck, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jeffrey K. Mauck v. United States Postal Service
01980108
October 29, 1998
Jeffrey K. Mauck, )
Appellant, )
)
v. ) Appeal No. 01980108
) Agency No. 1-K-204-0026-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's September 10, 1997 decision
dismissing appellant's complaint on the bases that appellant failed to
state a claim and on the grounds of mootness is not proper pursuant to
the provisions of 29 C.F.R. �1614.107(a) and (e).
A review of the record shows that appellant alleged that he had been
discriminated against on the bases of race (Caucasian) and sex (male)
when on August 8, 1996, and August 22, 1996, his supervisor did not
provide him with new work gloves after he requested them, although a
black female coworker had been provided with a new pair of gloves. In his
formal complaint, appellant acknowledged that another supervisor had
"immediately" provided a pair of gloves to him. In its final decision,
the agency found that appellant had failed to show any harm to the terms
or conditions of his employment and that even if he had shown a specific
harm, his complaint was moot since he had received the pair of gloves
in question.
An agency shall accept a complaint from any aggrieved employee or
applicant 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; �1614.106(a). The Commission
has held that while the regulations do not define the term "aggrieved
employee," the United States Supreme Court has interpreted it to mean
an employee 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 (Apr. 21,
1994). Riden v. Department of the Treasury, EEOC Request No. 05970314
(October 2, 1998). "Specifically, an employee must allege and show a
`direct, personal deprivation at the hands of the employer,' that is,
a present and unresolved harm or loss affecting a term, condition or
privilege of his/her employment." Diaz (citing Hammonds v. United States
Postal Serv., EEOC Request No. 05900863 (Oct. 31, 1990); Taylor v. United
States Postal Serv., EEOC Request No. 05900367 (June 2, 1990)).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall
dismiss a complaint that fails to state a claim under �1614.103. In this
case, appellant alleged that while he, a Caucasian male was twice denied
a pair of gloves by his supervisor, a black female coworker was provided
with a new pair of gloves without incident. Under these circumstances,
the agency should not have dismissed it for failure to state a claim:
the only questions for the agency to consider are whether appellant is
aggrieved and whether the complaint alleges employment discrimination on
a basis covered by EEO statutes. If the answer is yes, then the agency
must accept the complaint for processing, regardless of what it thought
of the merits. Odoski v. Department of Energy, EEOC Appeal No. 01901496
(April 16, 1990).
EEOC Regulation 29 C.F.R. �1614.107(e) provides in relevant part that
an agency shall dismiss a complaint or portion of a complaint that is
moot. The United States Supreme Court has held that a discrimination
complaint is moot when: (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 violation. County of Los Angeles v. Davis,
440 U.S. 625, 631 (1979). Under such circumstances, no relief is
available and thus there is no need for a determination of the rights
of the parties. Id. Regarding appellant's complaint, the record shows
that appellant was provided with a pair of gloves within two weeks of his
original request. We find that the complaint has been rendered moot.
Accordingly, the final agency decision dismissing the complaint on
grounds of mootness was proper and is 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:
October 29, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations