01a53618
08-24-2005
Gary L. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gary L. Johnson v. United States Postal Service
01A53618
08-24-05
.
Gary L. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53618
Agency No. 4H-327-0037-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 10, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of reprisal for prior EEO activity when, on December 7,
2004, he was subjected to an investigative interview that led to him
being issued a Letter of Warning (LOW) on December 28, 2004 for being
considered Absent Without Leave (AWOL).
The agency dismissed complainant's complaint for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1). It found that the investigative
interview did not render complainant aggrieved. It further determined
that the LOW was expunged from complainant's disciplinary record as a
result of a Step 2 grievance proceeding, and as such, complainant failed
to demonstrate that he suffered a harm or loss with respect to a term,
condition, or privilege of employment.
On appeal, complainant asserts that the agency improperly dismissed his
claim because, among other things, the Commission's reprisal provisions do
not restrict the actions that can be challenged to those that affect the
terms and conditions of employment, the agency failed to provide proof
that the LOW was in fact expunged from his records, and he requested
damages rendering him aggrieved.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) requires an agency to dismiss
a complaint, or portion thereof, 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; � 1614.106(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 21, 1994). In the case of reprisal, one must
consider whether the agency's action could have a chilling effect
upon the willingness of individuals to speak out against employment
discrimination or to participate in the EEOC's administrative process or
other employment discrimination proceedings. See EEOC Compliance Manual:
Section 8, Retaliation, May 20, 1999.
Here, the record reflects that the agency conducted an investigative
interview that led to complainant being issued a LOW, an action which
arguably could have a chilling effect on complainant's use of the
EEO process. As such, the investigative interview, when coupled with
the LOW, states a claim.
Moreover, we turn to whether complainant's claim was rendered moot
once the LOW was expunged from complainant's disciplinary record as
a result of a Step 2 grievance proceeding. 29 C.F.R. � 1614.107(a)
(5) provides that the agency shall dismiss a complaint that is moot.
To determine whether the issue raised in the instant complaint is moot,
it must be ascertained (1) if it can be said with assurance that there
is no reasonable expectation that the alleged violation will recur,
and (2) if interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation. See County of Los
Angeles v. Davis, 440 U.S. 625(1979). When such circumstances exist, no
relief is available and no need for a determination of the rights of the
parties is presented. The Commission has further held that the potential
for compensatory damages means that an allegation cannot be dismissed as
being moot without a determination being made as to whether complainant
is entitled to compensatory damages. See, e.g., Watson v. Department of
the Navy, EEOC Request No. 05970452 (January 8, 1999);Huhn v. Department
of the Treasury, EEOC Request No. 05940630 (February 16, 1995); Ellicker
v. Department of Agriculture, EEOC Request No. 05931079 (September 22,
1994); and Salazar v. Department of Justice, EEOC Request No. 05930316
(February 9, 1994).
First, we note that there is nothing in the record that reflects that
the LOW was in fact expunged from complainant's disciplinary file in
the present case. The agency does not provide a rescission letter,
documentation regarding the grievance, or a statement from an agency
official stating that the LOW has been expunged. Second, complainant
requests �back pay and benefits, - compensatory damage[s] in the max
amount available by law and accommodation and representative fee[s]� in
his complaint. Assuming arguendo that complainant were to prevail in
this matter, he might be entitled to compensatory relief. Therefore,
it cannot be said that interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation.
Accordingly, the decision of the agency is reversed and remanded for
further processing in accordance with this decision and the proper
regulations. The parties are advised that this decision is not a decision
on the merits of complainant's complaint. The agency shall comply with
the Commission's Order set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____08-24-05_____________
Date