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Complainant also indicated that the agency based the LOW on outdated and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