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.