Debra Cameron, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 3, 2002
01A02502_r (E.E.O.C. Jan. 3, 2002)

01A02502_r

01-03-2002

Debra Cameron, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Debra Cameron v. U.S. Postal Service

01A02502

.January 3, 2002

Debra Cameron,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A02502

Agency No. 4-G-760-0341-97

Hearing No. 310-99-5231X

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated December 23, 1999, dismissing her complaint of unlawful

employment discrimination brought pursuant to Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

According to the record, complainant contacted an EEO Counselor on August

27, 1997, concerning a Letter of Warning (LOW) issued to her on July

28, 1997, based on an altercation between complainant and a co-worker.

Complainant also indicated that the agency based the LOW on outdated and

incorrect information, and would not permit her to have her choice of a

union representative. Additionally, complainant told the EEO Counselor

that the agency denied her request to view her disciplinary record.

When counseling was unsuccessful, complainant filed a formal complaint

on November 3, 1997. In her complaint, complainant claimed that she was

subjected to discrimination on the bases of race and sex regarding the

agency's purported improper handling of the altercation underlying the

LOW, and subsequent inappropriate discipline and actions, as specified

during EEO counseling, as set forth above. Complainant's complaint

additionally made reference to delays at step 2 in the grievance

procedure.

The agency accepted the complaint for investigation. When the

investigation was completed, complainant requested a hearing before an

EEOC Administrative Judge (AJ). Pursuant to this request, the agency

transferred the case to the EEOC Dallas District Office on November

21, 1998.

The AJ issued a Remand Letter (RL) to the agency, dated November 4,

1998, recommending that the entire complaint be dismissed. First, the

AJ determined that the following contentions, which the AJ construed as

a single claim (herein referred to as claim 2), should be dismissed on

the grounds of failure to state a claim:

a) that the agency denied complainant her choice of union

representative;

b) that the agency used untimely, misleading and contradictory

information in complainant's LOW; and,

c) that the agency denied her access to review her disciplinary file.

The AJ determined that complainant had failed to produce any evidence to

show how these actions resulted in a loss or harm to a right, privilege

or condition of employment. The AJ also found that these claims are

more properly construed as background evidence regarding issuance of

the LOW rather than claims of separate adverse actions.

The AJ then recommended dismissing complainant's LOW claim (herein

referred to as claim 1) on the grounds of mootness, because the LOW had

been expunged from the complainant's official personnel file (OPF) and

complainant failed to present any evidence of a reasonable expectation

that the action would recur. The AJ rejected complainant's contention

that the agency had recently used the LOW to show progressive discipline

to justify her recent suspension, finding that the agency denied this

contention and complainant failed to produce any evidence to support it.

With reference to the AJ's RL, the agency similarly determined that

expunging the LOW from complainant's record rendered claim 1 moot because

there was no reasonable expectation that the claimed discrimination

would recur. The agency also agreed with the AJ's finding that the

incidents in claim 2 did not constitute separate adverse actions, and

dismissed them for failure to state a claim.

On appeal, complainant again argues that claim 1 is not moot because the

agency used it to show progressive discipline in her July 1999 suspension,

which proves that the LOW is still maintained in her disciplinary

record, even if it was expunged from her OPF. Regarding claim 2,

complainant asserts that the agency has continuously denied her access

to review her disciplinary file, and maintains that she was harmed when

denied her choice of a union representative and when the agency used

incorrect information to support the LOW. The agency did not respond

to complainant's appeal.

Claim 1

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).

Here, review of the record fails to disclose documentary confirmation

that the LOW was expunged from complainant's OPF. Instead, a memorandum

dated August 20, 1998, instructs the personnel office to pull the LOW

from complainant's OPF, but there is no further documentation to indicate

if or when this was accomplished. Moreover, the record is devoid of

any evidence to show whether or not the LOW is maintained separately in

complainant's �disciplinary file,�or whether it was used in connection

with the July 1999 suspension as claimed by complainant. Absent this

evidence, the Commission finds that the agency has failed to adequately

support its decision to dismiss this claim on the grounds of mootness.

See Marshall v. Department of the Navy, EEOC Request No. 05910685

(September 6, 1991).

Furthermore, as a remedy in the instant complaint, complainant requests,

in pertinent part, that she be �made whole.� We interpret this as a

request for compensatory damages. Here, we find that neither the AJ

nor the agency addressed the issue of compensatory damages, and conclude

that the dismissal of claim 1 on the grounds that it was rendered moot

is improper for this reason as well. See Rouston v. National Aeronautics

and Space Administration, EEOC Request No. 05970388 (March 18, 1999).

Accordingly, we VACATE the dismissal of claim 1 and REMAND it to the

agency for further processing, as set forth in the ORDER below.

Claim 2

After careful review, we find that the contentions raised by complainant

in claim 2 are best analyzed separately as three matters, rather than

cumulatively as a single claim, in order to determine whether the agency

properly dismissed all of claim 2 for failure to state a claim.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint 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,

.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).

Regarding complainant's claim that the agency improperly handled the

altercation at issue, and used incorrect information for her LOW,

we concur with the agency that this fails to state a claim. Instead,

as also noted by the AJ, we find that this claim is background evidence

supporting claim 1, and does not constitute a separate actionable claim.

Accordingly, we AFFIRM the agency's dismissal of this portion of claim 2.

However, we find that the agency improperly dismissed complainant's

claim that the agency denied her access to her disciplinary records.

Here, complainant contends that the agency separately maintains an OPF

and a disciplinary file, and that the latter contains all disciplinary

actions taken against her, including those actions expunged from the OPF.

Complainant further contends that the agency uses the records in the

disciplinary file, not the OPF, as a basis for significant adverse

personnel actions which must be based on progressive discipline.

Complainant contends that the agency permits review of the OPF, but has

repeatedly denied her access to her disciplinary file. We find that the

agency's denial of complainant's request to review her disciplinary file

renders her aggrieved within the meaning of the legal standard set forth

above based on her contention that agency uses the records in this file,

and not the OPF, to impose significant discipline. In essence, we find

that complainant is claiming that her employee rights to review the OPF

must also extend to the disciplinary file, such that the agency's denial

of access to the disciplinary file renders her aggrieved.

Accordingly, we VACATE the dismissal of this portion of claim 2, and

REMAND it to agency for further processing as set forth in the ORDER

below.

With respect to complainant's claim that the agency delayed the grievance

process and prevented her choice of union representation, we note

that the Commission has long held that an employee cannot use the EEO

complaint process to lodge a collateral attack on another proceeding.

See Wills v. Department of Defense , EEOC Request No. 05970596 (July

30, 1998); Kleinman v. United States Postal Service, EEOC Request No.

05940585 (September 22, 1994); Lingad v. United States Postal Service,

EEOC Request No. 05930106 (June 25, 1993). Here, because these

claims arose in the course of the union grievance process, we find that

complainant should have raised these matters in that proceeding itself.

We find that it is inappropriate to now attempt to use the EEO process to

collaterally attack actions which occurred in the union grievance process.

Accordingly, we find that the agency properly dismissed this portion of

claim 2, and we AFFIRM that determination.

ORDER

The agency shall submit to the Hearings Unit of the EEOC Dallas District

Office a request for a hearing regarding the remanded claims (issuance

of letter of warning; denial of access to disciplinary records) herein.

The agency is directed to submit a copy of the complaint file to the

Hearings Unit of the Dallas District Office within fifteen (15) calendar

days of the date that this decision becomes final. The agency shall

provide written notification to the Compliance Officer at the address

set forth below that the complaint file has been transmitted to the

Hearings Unit.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

January 3, 2002

Date