01970726
04-16-1999
Callie A. Davis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Callie A. Davis v. United States Postal Service
01970726
April 16, 1999
Callie A. Davis, )
Appellant, )
)
v. ) Appeal No. 01970726
) Agency No. 4C-440-1246-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. The final decision was issued on August 16, 1996.
The appeal was postmarked October 30, 1996. Accordingly, the appeal is
considered timely<1> (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
On June 10, 1996, appellant filed a formal complaint, alleging that she
was the victim of unlawful employment discrimination on the bases of
race and sex as the result of the agency's decision to issue her several
letters of warning. As relief, appellant requests that all disciplinary
actions taken against her be "rescinded and expunged from all records."
On August 16, 1996, the agency issued a final decision. Therein, the
agency found that appellant's formal complaint was comprised of three
allegations, that were identified in the following fashion:
1. On April 30, 1996, appellant became aware that two male employees
in her unit had been issued letters of warning the same time that she
had been issued a letter of warning, on January 11, 1996, and that their
letters of warning had been expunged.
2. On April 19, 1996, she was issued a letter of warning in lieu of a
fourteen-day suspension.
3. On March 22, 1996, she was issued a letter of warning in lieu of a
seven-day suspension.
The agency accepted allegations 2 and 3 for investigation. The agency
dismissed allegation 1 for failure to state a claim. Specifically,
the agency found that there is no discipline dated January 11, 1996,
in appellant's files and that the January 11, 1996 letter of warning
was "obviously expunged."
On appeal, appellant argues that allegation 1 was improperly dismissed and
submits a copy of the letter of warning issued on January 11, 1996.<2>
While the agency dismissed allegation 1 for failure to state a claim,
we find that this allegation is more properly analyzed in terms of
whether it is moot.
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.
Upon review, we find that allegation 1 is not moot. In its final
decision, the agency determined that there is no discipline dated January
11, 1996, in appellant's records and that the letter of warning was
"obviously expunged." We find, however, that the agency has not provided
evidence to establish that the January 11, 1996 letter of warning has been
expunged from all agency files. In Ericson v. Department of the Army,
EEOC Request No. 05920623 (January 14, 1993), the Commission stated
that the agency has the burden of providing evidence and/or proof to
support its final decisions. See Gens v. Department of Defense, EEOC
Request No. 05910837 (January 31, 1992). In the instant case, we find
that the agency did not meet that burden. We find that this matter must
be REMANDED to the agency for further processing in accordance with the
Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall supplement the record with documentary evidence regarding
whether appellant's January 11, 1996 letter of warning has been expunged
from all records. Such evidence shall include a signed statement from
an agency official, who has reviewed appellant's Official Personnel File
(OPF).
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a new final decision addressing allegation 1 or
a notice of processing regarding allegation 1.
A copy of the new final decision or notice of processing must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
April 16, 1999
____________________________
DATE Ronnie Blumenthal, Director
1 The dismissal of a complaint or a portion of a complaint may be
appealed to the Commission within thirty (30) calendar days of the date
of the complainant's receipt of the dismissal or final decision. See
29 C.F.R. �1614.402(a). Because the agency failed on appeal to supply
a copy of the certified mail receipt or any other material capable of
establishing that date, the Commission presumes that the appeal was
filed within thirty (30) calendar days of the date of appellant's
receipt of the final decision.
2 The record reflects that the agency inadvertently dated the letter
of warning "January 11, 1995," instead of "January 11, 1996."