01982387
03-15-1999
Lewis H. Kelly, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Allegheny/Mid-Atl, Agency.
Lewis H. Kelly v. United States Postal Service
01982387
March 15, 1999
Lewis H. Kelly, )
Appellant, )
)
v. ) Appeal No. 01982387
) Agency No. 1-D-234-0069-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Allegheny/Mid-Atl, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint. Appellant alleged that he was
discriminated against on the bases of race (White), sex (male), and age
(56), when, following an on-the-job accident, he was issued a letter of
warning.
BACKGROUND
Appellant was injured in the course of performing his duties as
mailhandler, tripping and injuring his knee and shoulder. As a result of
the accident, the agency issued a letter of warning to appellant stating
that appellant had been negligent in causing the accident. Appellant
filed a grievance disputing the letter of warning. The grievance
was settled, with the agency agreeing that "the Letter of Warning is
reduced to a discussion . . ." Thereafter, despite the settlement of his
grievance, appellant filed the complaint in the instant matter, alleging
that the letter of warning had been issued for discriminatory reasons.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant'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). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.
This Commission has consistently applied this rule to cases involving the
situation presented by the matter at hand, holding that the reduction
of a letter of warning to a "discussion" renders the underlying issue
moot because appellant is no longer aggrieved. See Douglas v. United
States Postal Service, EEOC Request No. 05950053 (April 18, 1996).
Therefore, the agency reached the correct result in dismissing appellant's
complaint.<1>
Appellant suggests in his appeal statement that he has suffered (or likely
will suffer) compensatory damages as a result of his physical injuries.
He does not contend, however, that those damages were caused by the
allegedly discriminatory action of the agency, i.e., the issuance of
the letter of warning. "To receive an award of compensatory damages,
a complainant must demonstrate that (s)he has been harmed as a result
of the agency's discriminatory action . . . " Rountree v. Department
of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995). Absent any
allegation of a causal relationship, appellant's claim for compensatory
damages cannot be sustained.
For the foregoing reasons, we find that the agency properly dismissed
the complaint in this matter. Accordingly, we AFFIRM the final agency
decision.
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.
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. 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.F.R.). 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:
March 15, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The agency purported to dismiss appellant's complaint under 29
C.F.R. �1614.107(a) on the ground that appellant was "not aggrieved."
This Commission has held that dismissals in cases of this nature more
properly come within the ambit of 29 C.F.R. � 1614.107(e) which deals
specifically with mootness. See Douglas v. United States Postal Service,
supra.