0120091117
03-31-2009
Jerry D. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jerry D. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091117
Agency No. 1A073000608
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 21, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
In a complaint dated February 5, 2008, complainant alleged that he was
subjected to discrimination on the bases of race (African-American),
sex (male), and color (Black) when he was issued a notice of removal for
failure to comply with the terms of a last chance agreement. The last
chance agreement required that complainant submit to a fitness for duty
examination. As part of that examination, the agency sought to include
a drug and alcohol test. Complainant refused to take the test and was
subsequently removed for his refusal.
Complainant also filed a grievance on his removal and the matter went to
arbitration. On May 20, 2008, the arbitrator issued a decision finding
there was bad faith on the part of management and reinstating complainant
to his position with back pay and lost overtime, restoration of seniority
and benefits, less any interim earnings and unemployment benefits.
Complainant also pursued the instant complaint and requested a
hearing. Upon receipt of the arbitrator's decision, the agency filed a
motion to dismiss the matter as moot. Thereafter, an EEOC Administrative
Judge (AJ) issued a dismissal, finding the matter was moot. The AJ
noted that complainant was questioned about the relief he sought, and he
said he wanted his job back. The AJ noted that complainant did not seek
compensatory damages either in his complaint, investigative affidavit,
or in the prehearing conference. As such, the AJ found she could not
award any more relief than that granted by the arbitrator and dismissed
the matter as moot. In its final order, the agency adopted the AJ's
dismissal.
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. The Commission
finds that complainant has received all of the relief to which he was
entitled, given that he did not request compensatory damages.
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
March 31, 2009
__________________
Date
2
0120091117
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091117