Joe L. Ruiz, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 8, 1999
01976387 (E.E.O.C. Oct. 8, 1999)

01976387

10-08-1999

Joe L. Ruiz, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Joe L. Ruiz v. United States Postal Service

01976387

October 8, 1999

Joe L. Ruiz, )

Appellant, )

) Appeal No. 01976387

v. ) Agency No. 4-G-770-0309-97

)

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 �501 of the Rehabilitation Act of 1973, as amended, 29

U.S.C. �791 et seq. The final agency decision was dated November 3, 1997.

The appeal was postmarked November 19, 1997.<1> The Commission hereby

accepts the appeal in accordance with EEOC Order No. 960, as amended.

The issue on appeal is whether the agency properly dismissed appellant's

complaint on the grounds that the matter at issue is now moot.

Appellant filed a formal EEO complaint dated March 5, 1997, alleging that

he was discriminated against on the basis of his disability (tendinitis)

when he was placed off of the clock on January 29, 1997, and denied

reasonable accommodation. As relief, appellant stated, among other

things, that he was seeking compensatory damages.

The agency initially accepted appellant's complaint for processing,

and conducted an investigation of the matter. At the conclusion of

the investigation, the agency notified appellant of his right to an

administrative hearing. After it received no response from appellant,

the agency, on November 3, 1997, issued a final decision, dismissing

appellant's complaint for failure to state a claim. The agency stated

that appellant was denied a light duty assignment as a result of

additional weight limitations being added to his medical restrictions.

The agency noted that appellant was ultimately compensated for 342 hours

for the period from January 29 through April 8, 1997, after appellant's

workers' compensation claim was approved by the Department of Labor.

The agency stated that appellant did not furnish any evidence to support

his claim for compensatory damages. Thus, the agency concluded that

appellant received all of the relief to which he was entitled.

On appeal, appellant asserted that his condition worsened due to the

agency's failure to reasonably accommodate him, and that he was entitled

to compensatory damages.

The Commission notes that while the agency stated that it was dismissing

appellant's complaint for failure to state a claim, the rationale provided

by the agency more appropriately addresses whether the allegation has

been rendered moot. EEOC Regulation 29 C.F.R. �1614.107(e) allows for

the dismissal of a complaint or allegations therein when the issues

raised are moot. To determine whether the issues raised in appellant's

complaint are in fact moot, 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

violation. 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.

While the agency asserted that appellant was compensated for 342 hours,

appellant's status after April 8, 1997, is unclear. It appears from

the record that appellant's restrictions were permanent, and there is no

evidence that appellant was accommodated after the period specified in the

final agency decision. Further, while the agency stated that appellant

failed to provide evidence to support his claim for compensatory damages,

appellant indicated that he did provide such information. Therefore,

we find that appellant may still be aggrieved as a result of the matter

in question. Accordingly, the agency's dismissal of appellant's complaint

is REVERSED, and the complaint is hereby REMANDED to the agency for

further processing.

ORDER

The agency is ORDERED to resume processing of the remanded allegation from

the point processing ceased. Given the apparent confusion regarding the

original notice of the right to an administrative hearing, the agency

shall, within fifteen (15) calendar days of the date this decision

becomes final, advise appellant in writing of his right to request

either an administrative hearing before an EEOC Administrative Judge

or a final agency decision. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request. A copy of the agency's

letter notifying appellant of his right to a hearing must be sent to

the Compliance Officer as referenced below.

IMPLEMENTATION OF THAT THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

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 (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. 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:

Oct. 8, 1999

DATE Carlton M. Hadden

Acting Director

Office of Federal Operations

1Appellant initially filed a premature appeal on August 15, 1997. It

appears that the appeal was filed after appellant received the

investigative file and notice of his right to an administrative hearing,

which the agency entitled "Appeal Rights." Given that the appeal was

pending with the Commission at the time the final agency decision was

issued, and appellant's timely filing of the November 19, 1997 appeal

form, the Commission will exercise its discretion and consider the

underlying final agency decision.