01972420_r
03-30-1999
Robert L. Boyd, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert L. Boyd, )
Appellant, )
)
v. ) Appeal No. 01972420
) Agency No. 1-G-754-1155-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On January 27, 1997, appellant filed a timely appeal of a January 6, 1997
final agency decision dismissing his complaint on the grounds of mootness.
The final agency decision framed the allegation of appellant's October
28, 1996 complaint as whether appellant was discriminated against on
the bases of age (57) and retaliation (prior EEO activity) when he was
told that he was "written up" by his supervisor for failing to perform
an assigned maintenance task. In dismissing the complaint, the agency
stated that the agency had taken corrective action and there was no
reasonable expectation that the alleged discrimination would recur.
The agency noted that the supervisor discovered that appellant was not
responsible for the task and apologized to appellant for the error and
also informed appellant that he was not written up.
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
there is no reasonable expectation that the alleged violation will recur;
and interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation. 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).
Concerning the alleged incident, appellant states on appeal that he
was informed by Person A that he was written up by his supervisor for
not "changing out the strippers" and not making an entry into a log.
Appellant also states that an electronic mail report, a copy of which he
obtained from Person B, was sent to most maintenance supervisors regarding
the incident which occurred on August 26, 1996. Appellant asserts that
his complaint is not moot because he was not "made whole" and because no
electronic mail report was sent to supervisors or managers retracting the
August 26, 1996 report. Appellant also states on appeal that although
he did not receive an apology letter, his supervisor told him that he was
sorry that he had erroneously accused him of not performing an assignment.
In response to appellant's appeal, the agency maintains that the
complaint is moot. The agency also challenges the existence of the
alleged electronic mail report, noting that it was not produced during
informal counseling nor provided to the agency on appeal.
Upon review, we find that the agency's dismissal was proper because
there is no reasonable expectation that the alleged violation will recur
and interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation. We find that appellant was not
written up and there is no evidence that any written record of the
incident exists. The Counselor's Report reflects that appellant's
supervisor stated that appellant was not written up for the incident
and that he apologized to appellant when he learned that appellant was
not assigned to the disputed task. In addition, although appellant
stated that there was an electronic mail report regarding the incident,
appellant failed to produce a copy of the alleged report on appeal even
though he claimed to have a copy. Accordingly, consistent with our
discussion herein, the agency's final decision is AFFIRMED.
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:
March 30, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations