01970617
01-20-1999
William David Nutt, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
William David Nutt v. United States Postal Service
01970617
January 20, 1999
William David Nutt, )
Appellant, )
)
v. ) Appeal No. 01970617
) Agency No. 4-G-780-1162-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated October 3, 1996, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.107(b) and (e). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
The appellant's complaint alleged that two agency officials had harassed
him on one occasion in December 1995 and on four occasions in February
1996.
The final agency decision dismissed the appellant's complaint on the
ground that it was moot. The decision represented that the two allegedly
harassing agency officials no longer worked at the station where the
appellant worked and, therefore, there was no reasonable expectation
that the alleged harassment would recur. In addition, the decision
dismissed allegation 1 on the ground that the appellant's March 20,
1996 counseling request was untimely as to the December 1995 incident.
In so doing, the decision found that the December incident was not
interrelated to any of the other incidents the appellant described.
EEOC Regulation 29 C.F.R. �1614.107(e) requires the agency to dismiss
a complaint, or portion thereof, which is moot. A complaint is moot
and a person is no longer aggrieved when it can be said with assurance
that: (1) interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation; and (2) there is no
reasonable expectation that the alleged violation will recur. When both
conditions are satisfied, neither party has a legal, cognizable interest
in the final determination of the underlying questions of fact and law.
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).
After reviewing the entire record the Commission finds that the agency
properly dismissed the appellant's complaint on the ground that it was
moot. The appellant has not contested the agency's representation that
the allegedly harassing officials no longer work at the station where
he works. Therefore, the Commission finds that there is no reasonable
expectation that the alleged harassment will recur. The appellant also
has not identified any effect of the alleged harassment which has not
been resolved by the reassignment of the two agency officials.
On appeal, the appellant contends that the agency did not properly frame
his complaint. However, the Commission finds that the agency addressed
all of the allegedly harassing incidents described in the appellant's
complaint.
The appellant also contends that the agency did not investigate his
complaint and that he never had an opportunity to present his case
to an Administrative Judge. However, as explained in the Davis case
cited above, neither party has a legal right to a final determination
of the underlying questions of fact and law when the two conditions for
a mootness finding have been satisfied.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's August 3, 1996 complaint.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
January 20, 1999
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations