Raymond Moctezuma, Jr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 6, 2009
0120090172 (E.E.O.C. Mar. 6, 2009)

0120090172

03-06-2009

Raymond Moctezuma, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Raymond Moctezuma, Jr.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090172

Agency No. 1H-343-0012-07

Hearing No. 510-2008-00063X

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity

Commission (EEOC or Commission) from the final agency order dated

September 19, 2008, implementing an EEOC Administrative Judge's (AJ)

decision procedurally 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. Complainant alleged

that he was subjected to discrimination based on his race (Caucasian),

national origin (Hispanic), sex (male), color (white), and reprisal for

prior protected EEO activity when:

1. he was issued a notice of seven day suspension dated March 7, 2007,1

2. he was issued a letter of warning dated April 4, 2007,

3. he was placed on emergency off-duty status on June 5, 2007, and

4. following his emergency off duty status, he was issued a two week

suspension.

The AJ dismissed complainant's case for being moot. The regulation set

forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal

of a case when the issues raised therein are moot. To determine whether

the issues raised in complainant's case are moot, the fact finder 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.

In finding complainant's case moot, the AJ reasoned that complainant

was terminated [effective February 26, 2008], that the Merit Systems

Protection Board (MSPB) sustained the termination, and complainant did

not request compensatory damages. The AJ's decision reasoned that since

complainant was terminated, there was no reasonable expectation that the

alleged violations would recur, and suggested that since he also did not

request compensatory damages, the termination irrevocably eradicated the

effects of the alleged discrimination, i.e., no relief was available.

While the first prong of the mootness test was met, we find that the

record does not establish that the second prong was met. We will discuss

each claim in turn. The counselor's report indicates that the claim 1

suspension was a paper suspension, meaning complainant continued to work.

Nevertheless, there is no evidence that it was withdrawn and expunged

from complainant's official personnel file (OPF). Accordingly, there

is still relief available.2 The same is true for claims 2, 3 and 4.

In addition, the Plant Manager stated that as a result of the issue 3

emergency off duty status, complainant was on leave without pay (LWOP)

for 14 days. Fully eradicating the effects of this alleged discrimination

would include back pay for the time complainant was on emergency off

duty status without administrative leave.

The parties filed a joint motion to amend complainant's complaint to add

claim 4, which was approved by the AJ. The motion did not identify the

date of the referenced suspension, and described it as the suspension

which followed the emergency off duty status matter "which deals with

the same allegations of improper conduct currently before the presiding

Judge." This appears to refer to the July 12, 2007 notice of 14 day no

time off suspension, given for the same reason as the claim 3 emergency

off duty status. However, while the AJ's decision suggests this at one

point, at another point it indicates the 14 day suspension at issue was

for an incident occurring on November 24, 2007. On remand, the identity

of the suspension must be clarified.

As complainant's case is not moot, it is remanded in accordance with

the order below.

ORDER

The agency shall submit to the Hearings Unit of the appropriate EEOC

Field or District Office a request for a hearing on claims 1 through 43

within fifteen (15) calendar days after this decision becomes final.

The hearing request must include a brief explanation that it is being

made pursuant to this decision, and be accompanied with the complaint,

investigative files, and hearing record, and a copy of this decision.

The agency shall provide a copy of the hearing request to the Compliance

Officer at the address set forth below, and a copy to complainant and

his representative. Thereafter, an Administrative Judge shall issue a

decision on the complaint in accordance with 29 C.F.R. � 1614.109 and

the agency shall issue a final action in accordance with 29 C.F.R. �

1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant 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. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant

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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

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

See 29 C.F.R. � 1614.409.

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 (R0408)

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 within ninety (90) calendar days from the date

that you receive this decision. 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 (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 6, 2009

__________________

Date

1 The AJ's decision referred to this as the suspension issued to

complainant on April 4, 2007.

2 If, for example, complainant applies for employment with other federal

employers, the content of his OPF will likely follow him.

3 On remand, the parties need to clarify which two week suspension claim

4 refers.

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0120090172

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120090172