01984595
08-17-2000
Robert A. Mercer, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert A. Mercer, Jr. v. United States Postal Service
01984595
August 17, 2000
.
Robert A. Mercer, Jr.,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984595
Agency No. 4B-028-0009-98
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated May 1, 1998 dismissing his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of age and reprisal when on October 14, 1997,
he was issued a Letter of Warning (LOW) for failing to discharge his
duties as a letter carrier. The agency dismissed the complaint on the
grounds of mootness, pursuant to 64 Fed. Reg. 37,644, 37, 656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(5)).
EEOC Regulation 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 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.
The record herein reveals that the LOW had been expunged from
complainant's personnel file. The record contains affidavits from both
complainant's immediate supervisor and the station manager indicating
that the LOW had been removed from complainant's records and made null
and void. There is no evidence in the record suggesting that the event is
likely to recur. Moreover, the record does not indicate that complainant
requested compensatory damages as corrective action.
The Commission determines, from a review of the entire record, that
the expunging of the LOW has irrevocably eradicated the effects of the
alleged violation. We also find there is no reasonable expectation that
the alleged violation will recur. See County of Los Angeles v. Davis,
440 U.S. 625 (1979).
Based on a through review of the record herein, and for the reasons
stated above, it is the decision of this Commission, that the agency's
dismissal of complainant's complaint was proper. Accordingly, the
agency's decision dismissing complainant's complaint is hereby AFFIRMED
for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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:
____________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 17, 2000
___________________
Date
_________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.