0120110792
04-15-2011
Kither R. Greenlee, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Kither R. Greenlee,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120110792
Agency No. 4C-450-0048-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 28, 2010, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Upon review,
the Commission finds that Complainant's complaint was properly dismissed.
At the time of events giving rise to this complaint, Complainant worked as
a Letter Carrier at the Agency’s Post Office in Covington, Kentucky.
On June 10, 2010, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the bases of race
(African-American), disability, and age (57) when on February 26, 2010,
he received a 7-Day Suspension for Attendance.
On June 28, 2010, Complainant amended his complaint to allege that the
Agency discriminated against him on the bases of and disability when
his Step B Grievance was found to be untimely.
The Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(5)
finding that the matter was moot. The Agency determined that Complainant
filed a grievance regarding the suspension at issue. The grievance
was settled in Complainant’s favor and, as a result, the suspension
was reduced to a discussion prior to Complainant filing the instant
complaint. In addition, the Agency found that Complainant had not
requested a remedy in his formal complaint or affidavit. As there was
no reasonable expectation that the alleged action would recur and the
interim relief had completely and irrevocably eradicated the effects
of the alleged violation, the Agency found that the instant complaint
had been rendered moot. Alternatively, the Agency dismissed claim (1)
for failure to state a claim as Complainant had not been aggrieved by
the incident. Finally, the Agency dismissed claim (2) pursuant to 29
C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency
determined that the allegation amounted to an impermissible collateral
attack on another forum’s proceeding.
On appeal, Complainant alleges that he suffered harm by the Agency’s
actions and that the Agency uses case law as a loophole. Accordingly,
Complainant requests that the Commission reverse the Agency’s dismissal.
The Agency requests that the Commission affirm the dismissal.
ANALYSIS AND FINDINGS
As to claim (1), the Commission notes that the regulation set forth at
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 issue
raised in claim (1) is 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) the 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. Dep’t 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 Commission has previously held that a letter of warning
reduced to a discussion no longer constitutes a disciplinary action.
Yeats v. U.S. Postal Serv., EEOC Request No. 05940605 (Oct. 27, 1994);
Gafforino v. U.S. Postal Serv., EEOC Request No. 05910847 (Dec. 30, 1991).
The Commission has applied this precedent where a suspension is reduced to
a discussion. Spencer v. U.S. Postal Serv., EEOC Appeal No. 0120091223
(Apr. 30, 2009). In the present case, the record contains a copy of the
grievance decision showing that the notice of suspension was reduced
to an official discussion. Further, Complainant has not requested
compensatory damages as a remedy. As there is no reasonable expectation
that the alleged violation will recur and interim relief has eradicated
the effects of the alleged discrimination, the Commission finds that claim
(1) has been rendered moot.
Regarding claim (2), the Commission finds that Complainant’s allegation
was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim. The Commission finds that claim (2) constitutes a
collateral attack on the negotiated grievance process. The Commission
has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC
Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC
Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC
Request No. 05930106 (June 25, 1993). The proper forum for Complainant
to address the decision of the negotiated grievance procedure is within
that forum itself. Accordingly, the Agency's final decision dismissing
Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 15, 2011
Date
2
0120110792
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110792