Mack Hunt, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.

Equal Employment Opportunity CommissionApr 19, 2000
01a00320 (E.E.O.C. Apr. 19, 2000)

01a00320

04-19-2000

Mack Hunt, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.


Mack Hunt, )

Complainant, )

)

v. ) Appeal No. 01A00320

) Agency No. 4H-390-0156-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W. Areas), )

Agency. )

____________________________________)

DECISION

INTRODUCTION

On October 15, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by him on

September 20, 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.<1> The appeal is accepted

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. � 1614.405).

BACKGROUND

The record reveals that on May 26, 1998, complainant contacted an EEO

Counselor and alleged the agency discriminated against him on the

bases of race (Black) and sex (male) when:(1) he was harassed about

not completing his routes; (2) charged with unsatisfactory performance;

and (3) management and the union conspired to remove him from the post

office.

Informal efforts to resolve his complaint were unsuccessful, and on

August 6, 1999, complainant filed a formal EEO complaint alleging he was

discriminated against on the bases of race (Black) and sex (male), when:

(1) he was harassed about completing his routes; (2) he was charged

with unsatisfactory performance and issued a Letter of Warning; (3)

management conspired with the union in an attempt to remove him from

the Postal Service; (4) he was denied leave under the Family & Medical

Leave Act; and (5) he was required to work in unsafe conditions.

On September 7, 1999, the agency issued a final decision dismissing

complainant's claims 1,2 and 3 pursuant to 29 C.F.R. � 1614.107(a)(3).

Specifically, the agency found that on March 8, 1999, complainant filed

a civil action in U.S. District Court, Northern District of Mississippi,

concerning the Letter of Warning. The agency found that complainant's

claims 1, 2, and 3 were related to the basis for the civil action,

and as such, dismissed the claims in accordance with 29 C.F.R. �

1614.107(a)(3).

The record contains a copy of a �Judgement on Offer and Acceptance� from

the U.S. District Court, dated March 8, 1999. Therein, the agency agreed

to remove all references of the Letter of Warning from complainant's

official personnel files.

The agency further found that 29 C.F.R. � 1614.105(a) requires a

complainant to consult with an EEO Counselor prior to filing a formal

complaint. Finding that complainant failed to present claims 4 and 5

to an EEO Counselor prior to filing his formal complaint, the agency

dismissed those claims. The agency referred complainant to an EEO

Counselor, and determined that the date of the formal complaint would

serve as the EEO Counselor contact date.

On appeal, complainant contends that his civil action was not based

on discrimination. He also argues the merits of the case. The agency

requests that we affirm the final decision.

ANALYSIS AND FINDINGS

64 Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter

referred to as 29 C.F.R. � 1614.409) provides that the filing of a

civil action "shall terminate Commission processing of the appeal."

Commission regulations mandate dismissal of the EEO complaint under these

circumstances so as to prevent a complainant from simultaneously pursuing

both administrative and judicial remedies on the same matters, wasting

resources, and creating the potential for inconsistent or conflicting

decisions, and in order to grant due deference to the authority of

the federal district court. See Stromgren v. Department of Veterans

Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of

Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. USPS,

EEOC Request No. 05880114 (October 25, 1988).

After a review of the record, however, we agree with complainant that

his civil action did not allege discrimination. Indeed, the Judgement

referenced above does not mention discrimination, nor does the agency

dispute complainant's contentions on appeal. As such, we find that

the civil action and the instant complaint are not identical. However,

we find the claims should be dismissed for alternative reasons.

Claim No. 1

Complainant alleged he was subjected to harassment when his supervisor

harassed him about completing his route when she measured his performance

by her own standard as opposed to the national standard. Complainant

has not alleged facts sufficient to show that he was subjected to

discriminatory harassment that was sufficiently severe or persuasive

to alter the conditions of his employment. Cobb v. Department of the

Treasury, EEOC Request No. 05970077 (March 13, 1997). Accordingly, the

agency's decision dismissing complainant's complaint for is AFFIRMED as

MODIFIED.

Claim No. 2

Complainant was issued a Letter of Warning for unsatisfactory

performance. In light of the agency's removal of the Letter of Warning

from complainant's official personnel file, we find the claim is moot.

64 Fed. Reg. 37,644, 37,656 (1999) (renumbered and hereinafter referred

to as 29 C.F.R.�1614.107(a)(5)) requires the dismissal of a complaint

where the claims raised therein are moot. To determine whether the claim

raised in the complaint is moot, it must be ascertained (1) whether

it can be said with assurance that there is no reasonable expectation

that the alleged violation will recur, and (2) whether 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 there

is no need for a determination of the rights of the parties.

A review of the record shows that interim relief, the removal of

the Letter of Warning from complainant's official personnel file,

has completely and irrevocably eradicated the effects of the alleged

violation. Moreover, there is no evidence of a reasonable expectation

that the alleged violation will recur. Accordingly, the agency's decision

to dismiss the claim is AFFIRMED as MODIFIED.

Claim No. 3

Complainant alleged the agency discriminated against him when it conspired

with the union to remove him from the post office. Specifically,

complainant alleged that the union failed to file a grievance at step 2,

presumably, regarding his Letter of Warning. The Commission find that

this claim constitutes a collateral attack on a grievance decision.

Complainant charges, in effect, that the union's decision not to file

a grievance discriminated against him. As the complaint represents

a collateral attack on the union process, it does not state a claim

under EEOC regulations. See Lingad v. U.S. Postal Service, EEOC Request

No. 05930106 (June 24, 1993; Byrd v. U.S. Postal Service, EEOC Request

No. 05920600 (September 3, 1992); see also Bowie v. U.S. Postal Service,

EEOC Request No. 05910802 (February 4, 1992), quoting Rosado v. Department

of the Air Force, EEOC Request No. 05891011 (December 21, 1989) ("where

a Federal employee is merely dissatisfied with the resolution of his

or her grievance, the remedy is within the appellate structure of the

grievance process itself, not within the EEO process").<2> Accordingly,

the agency's decision to dismiss the claim is AFFIRMED as MODIFIED.

Claims 4 and 5

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. �

1614.107(a)(2)) states, in pertinent part, that an agency shall dismiss a

complaint which raises a matter that has not been brought to the attention

of an EEO Counselor, and is not like or related to a matter on which

the complainant has received counseling. A later claim or complaint

is "like or related" to the original complaint if the later claim or

complaint adds to or clarifies the original complaint and could have

reasonably been expected to grow out of the original complaint during the

investigation. See Scher v. United States Postal Service, EEOC Request

No. 05940702 (May 30, 1995); Calhoun v. United States Postal Service,

EEOC Request No. 05891068 (March 8, 1990).

A review of the Counselor's Report reveals only claims 1, 2, and 3 were

raised with the EEO Counselor. The remaining matters (4 and 5) were not

addressed with an EEO Counselor. Further, we do not find that claims 4

and 5, which allege the denial of FMLA leave, as well as complainant's

allegation that he was forced to work in an unsafe condition, add to or

clarify the remaining claims. The agency properly dismissed claims 4 and

5 on the grounds that the matters were not raised with an EEO Counselor.

Complainant should contact an EEO Counselor pursuant to the agency's

instructions should he wish to pursue the matter.

Accordingly, the agency's decision is AFFIRMED.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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 19, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.

2We also note that complainant submitted, on appeal, a Memorandum

Opinion from the U.S. District Court regarding his claim that the union

breached its duty of fair representation. Therein, the U.S. District

Court granted the union's motion for summary judgement.