Robert Moore, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 18, 2000
01985480 (E.E.O.C. Jan. 18, 2000)

01985480

01-18-2000

Robert Moore, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Robert Moore, )

Complainant, )

)

v. ) Appeal No. 01985480

William J. Henderson, ) Agency No. 4-C-080-1155-95

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On July 6, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on June 13, 1998,

pertaining to 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. <1> In his complaint, complainant alleged that

he was subjected to discrimination on the bases of race (Caucasian),

color (white), sex (male), and in reprisal for prior EEO activity when:

On May 18, 1995, complainant was not sent on break as were all mail

handlers in pay location 341, which caused a verbal altercation

between complainant and his supervisor; and subsequently on May 25,

1995, complainant received a Letter of Warning for Conduct Unbecoming

A Postal Employee (Vulgarity) and Failure to Follow Instructions.

The agency dismissed complainant's claim on the grounds that it was moot.

The agency noted that on October 2, 1995, complainant signed an EEO

Settlement-Counseling form and effectively withdrew his complaint;

which was subsequently accepted by management on January 15, 1998.

Furthermore, the agency argues that complainant's complaint is moot

because complainant left the agency's employment on April 11, 1997.

The record indicates that complainant was removed due to his purported

failure to cooperate in a fitness-for-duty examination.

The record shows that complainant signed an EEO Settlement-Counseling

Letter dated October 2, 1995. Although complainant had been placed

under another supervisor, the settlement agreement provided that

should complainant work for his former supervisor again, he would be

treated with the same dignity and respect provided other employees.

The record further shows that upon learning that management refused to

sign the EEO Settlement-Counseling Letter, complainant filed a formal

EEO complaint on October 5, 1995. In a December 10, 1997 letter to

complainant's supervisor, the agency attempted to obtain the signature

of complainant's former supervisor on the proposed settlement; however,

the supervisor refused to sign the agreement. Finally, in an April

1, 1998 letter, the agency notified complainant that the Manager of

Distribution Operations, his former supervisor's immediate manager,

signed the EEO Settlement previously signed by complainant.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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.

In the present case, the issue raised in the complaint is whether

complainant was subjected to discrimination when he received a Letter

of Warning. If complainant were to prevail, he would be entitled

to expungement of the Letter of Warning from all personnel records.

According to the terms of the settlement agreement, complaint was

promised that should he work for his former supervisor again, he would be

treated with the same dignity and respect provided other employees and,

as a result of his removal, complainant is no longer in the workplace.

We find, however, that the results of the settlement and complainant's

removal do not completely and irrevocably eradicate the effects of the

alleged discrimination; there is no evidence of record that the subject

Letter of Warning has been properly expunged from agency records.

Therefore, complainant's complaint has not been rendered moot.

Accordingly, the agency's decision to dismiss complainant's complaint

was improper and is hereby REVERSED. The complaint is REMANDED to the

agency for further processing in accordance with this decision and the

Order below.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and an

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

(R1199)

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 (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:

January 18, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On 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.