01992166
04-07-2000
Gerald A. Wood, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gerald A. Wood, )
Complainant, )
)
v. ) Appeal No. 01992166
) Agency No. 4-E-800-0172-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On January 22, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on January
7, 1999, 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. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of sex (male), age, and in reprisal for prior EEO activity when on March
30, 1998, complainant was placed in emergency placement-without-pay
status.
Originally, the agency accepted the complaint on August 21, 1998.
On December 28, 1998, the agency rescinded its acceptance, and issued a
final decision dismissing the complaint for failure to state a claim.
Specifically, the agency found that complainant filed a grievance
concerning the same matter. The grievance was resolved by an agreement
dated April 29, 1998, stating that:
Complainant would resign voluntarily;
Complainant would not seek re-employment with the agency;
Complainant would be granted administrative leave for the sixty-nine hours
from March 31, 1998 through April 10, 1998, at a straight-time pay rate;
Complainant would be paid for all unused annual leave; and
Complainant shall be entitled to all benefits of voluntarily separated
employees.
Based on the agreement, the agency reasoned that complainant suffered
no cognizable harm, and was not aggrieved.
On appeal, complainant argues that he clearly suffered harm when his
job was taken away after twelve years.
In his formal complaint, dated August 3, 1998, complainant requested
that he be returned to his job, given back-pay, and $25,000 in punitive
damages. In an EEO Investigative Affidavit, complainant explained
that his union representative suggested that he resign to avoid losing
retirement benefits. He laments that he �had no backing from the
union.�<2>
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint that fails to state a claim. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's
federal sector case precedent has long defined an "aggrieved employee"
as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 22,
1994).
Complainant clearly was aggrieved when he was placed on emergency off-duty
status. The analysis from the agency's FAD concerns whether there is
any further remedial relief available for complainant. Therefore, the
Commission finds that the claim is more properly analyzed for whether
it has been rendered moot by the grievance resolution agreement.
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.
The violation will not recur because complainant voluntarily resigned
from employment with the agency. The FAD addressed complainant's claims
for damages in his formal complaint - complainant received back-pay
for the period he was placed on emergency off-duty status. Also,
punitive damages are not available to federal employees. See Henderson
v. Department of the Treasury, EEOC Request No. 05940920 (April 7, 1995);
Walker v. Department of the Army, EEOC Petition No. 04970009 (January
5, 1998). Therefore, the Commission finds that complainant has received
all relief to which he would be entitled. The effects of the alleged
discriminatory act -- placing complainant in off-duty status -- has been
completely eradicated by the terms of the grievance resolution agreement.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED for the reasons set
forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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 (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:
April 7, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.
2However, the Commission notes that complainant never argued that he
was coerced into the grievance resolution agreement.