01982842
03-16-1999
Sandra J. Pruneda, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sandra J. Pruneda v. United States Postal Service
01982842
March 16, 1999
Sandra J. Pruneda, )
Appellant, )
)
v. ) Appeal No. 01982842
) Agency No. 4-G-780-0104-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On February 27, 1998, appellant filed an appeal with this Commission
from a final agency decision (FAD) pertaining to her 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 her complaint, appellant alleged that she
was subjected to discrimination on the bases of sex (female), national
origin (Hispanic), and age (over 40) when:
On November 6, 1996, appellant was issued two (2) Letters of Warning
(LOWs) for failing to provide medical documentation for sick leave,
and for unsatisfactory job performance.
While acknowledging in the formal complaint that both LOWs had already
been rescinded through the grievance process, appellant requested
as remedial relief, inter alia, that the agency reimburse her for
out-of-pocket expenses (certified copies made) and never place her on
a job with the supervisors involved in this incident.
In its FAD dated January 14, 1998, the agency dismissed the allegation
pursuant to EEOC Regulation 29 C.F.R. �1614.107(e), as moot because both
LOWs had already been rescinded through the grievance process.
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 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). 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, appellant acknowledges in her formal complaint that
the LOWs were already rescinded. The removal of the LOWs from appellant's
files eradicated the effects of the discrimination. There is no evidence
of record that the alleged discrimination will recur. Accordingly, the
agency's decision to dismiss appellant's complaint as moot 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. 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).
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 16, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The dismissal of a complaint or a portion of a complaint may be appealed
to the Commission within thirty calendar days of the date of the
complainant's receipt of the dismissal or final decision. See 29 C.F.R.
� 1614.402(a). Since the copy of the certified mail receipt contained in
the record does not contain a legible date of receipt and the agency failed
to provide any other material capable of establishing that date, the
Commission presumes that the appeal was filed within thirty calendar days
of the date of appellant's receipt of the final decision.