copy_of_0120063268
11-22-2006
Marla S. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marla S. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200632681
Agency No. 1J-531-0037-06
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 13, 2006, dismissing her formal 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.
Complainant initiated EEO Counselor contact on January 5, 2006.
Informal efforts to resolve her concerns were unsuccessful. On April
4, 2006, complainant filed the instant complaint, claimingthat she was
subjected to discrimination on the bases of sex, disability, and age.
In its final decision dated April 13, 2006, the agency determined that
complainant's formal complaint was comprised of the following claim:
On December 15, 2005, you were issued a Notice of Removal effective
January 20, 2005, for failure to effectively perform your assigned duties
and failure to secure the mails.
The agency dismissed complainant's complaint for failure to state a claim.
The agency stated that complainant was attempting to collaterally
attack the grievance process. Specifically, the agency stated that
"[complainant] indicated on [her] PS form 2564, Information for
Pre-Complaint Counseling that [she] had filed a grievance on the Notice
of Removal and that it was pending at Step 1 of the grievance-arbitration
procedure. Agency records indicate that the Notice of Removal dated
December 15, 2005, was administrative reduced to an Official Discussion
on February 7, 2006." The agency further stated that official discussions
alone do not render an employee aggrieved.
On appeal, complainant asserts that the "official discussion is now on
my record and documented." In addition, complainant states that due to
her removal she was out of work for three weeks. Complainant further
states that she returned to work on February 10, 2006, and that as of
April 28, 2006, she has not received any back pay.
In response, the agency reiterates that complainant's complaint is a
collateral attack on the grievance process. In addition, the agency
states that "[t]he notice of removal was reduced to an official
discussion...an official discussion is not considered discipline.
Furthermore, complainant has not shown that the official discussion
was made part of her records. Her statements to this regard are merely
based on conjecture and speculation."
The agency improperly dismissed complainant's complaint for alleging a
collateral attack on the grievance process. The record reflects that
complainant is alleging that the agency discriminated against her when
she was issued a Notice of Removal based on her protected classes.
Specifically, in an attachment to complainant's formal complaint,
she states that "on [December 5, 2005], an incident occurred in my
work area...[A] white male was absolved for all responsibility while
I was terminated. I feel I was singled out because of my sex, age,
and physical limitations." Thus, we find that complainant is alleging
that she was subjected to discrimination due to her Notice of Removal,
rather than the outcome or the processing of her grievance.
The Commission finds that complainant's complaint is more properly
analyzed as to whether it has been rendered moot by the grievance
which reduced complainant's termination to an official discussion.
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 issues raised in complainant's complaint are
moot, the factfinder 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); Kuo
v. Department 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.
We find that complainant's complaint has not been rendered moot.
The record contains a copy of an Administrative Decision dated February
7, 2006. Therein, it provides that complainant's "Notice of Removal
dated December 15, 2005, is being administratively reduced to an
official discussion. All other aspects of the disciplinary action dated
December 15, 2005 remain the same." Although the agency determined that
complainant's Notice of Removal was reduced to an official discussion,
the agency has not provided evidence to establish that the Notice of
Removal and any reference to the Notice of Removal was expunged from
all agency files, including complainant's personnel file. In addition,
complainant alleges that she was out of work for three weeks due to the
Notice of Removal and has not been compensated for this time period.
Finally, complainant, on appeal, asserts that the official discussion
has become part of her record. Based on these circumstances, it cannot
be said that the effects of the alleged violation have been completely
and irrevocably eradicated.
Accordingly, we REVERSE the agency's final decision dismissing
complainant's complaint and we REMAND this matter to the agency for
further processing in accordance with the ORDER 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
November 22, 2006
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120063268
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063268