01996954
02-07-2001
Garry S. Ellis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Garry S. Ellis v. United States Postal Service
01996954
February 7, 2001
.
Garry S. Ellis,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996954
Agency No. 4-H-327-0184-99
DECISION
Upon review, the Commission finds that the two claims raised in
complainant's complaint were properly dismissed.<1>
Complainant sought EEO counseling on March 22, 1999, claiming that he
had been discriminated against on the basis of reprisal when:
(1) on January 11, 1999, he requested to review his Official Personnel
File (OPF) and management failed to honor his request; and
(2) as of March 20, 1999, he had not been reimbursed for medical expenses
incurred, as stipulated in a grievance decision signed on March 16, 1999.
On May 19, 1999, complainant filed a formal complaint raising these
issues and argued that by these actions the agency had engaged in
harassment against him.
The agency dismissed claim 1 on the basis of untimely EEO counselor
contact after finding that complainant sought counseling on March 22,
1999, or approximately seventy days after he had requested to review
the OPF. The agency dismissed claim 2 for failure to state a claim
after the agency found that the matter raised in claim 2 was a collateral
attack on the outcome of the grievance process. On appeal, complainant
contends that the agency's actions constituted harassment.
Regarding claim 1, the record contains a statement by complainant wherein
he acknowledged that he ultimately received and reviewed his OPF on April
27, 1999, after numerous unsuccessful requests. Regarding claim 2, the
record reflects that the grievance settlement entered into on March 16,
1999, required the agency to reimburse complainant six dollars ($6.00).
The record further reflects, by receipt signed on June 11, 1999, that
complainant acknowledged receipt of the payment in question.
The agency notes that while the agency dismissed claim 1 for untimely EEO
Counselor contact, the Commission determines that this claim is properly
analyzed in terms of whether it has been rendered moot, in light of
complainant's acknowledgment that he reviewed his OPF, as discussed above.
EEOC Regulations provide in relevant part that an agency shall dismiss
a complaint or portion of a complaint that is moot. The United States
Supreme Court has held that a discrimination complaint is moot when:
(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
violation. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).
Under such circumstances, no relief is available and thus there is no
need for a determination of the rights of the parties. Id.
Because complainant acknowledged that he received and reviewed the OPF
on April 27, 1999, we determine that claim 1 was rendered moot because
this receipt completely and irrevocably eradication the effects of the
alleged violation, and we find that there is no reasonable expectation
that the alleged violation will recur.
Regarding claim 2, we determine that this claim was properly dismissed
for failure to state a claim. The Commission has consistently held
that claims which challenge the proceeding or decision of another forum
constitute a collateral attack and fail to state a claim under EEOC
Regulations. Fisher v. Department of Defense, EEOC Request No. 05930106
(July 15, 1994). A review of claim 2 persuades the Commission that
it constitutes a collateral attack on the step 2 settlement agreement
reached by the parties on March 16, 1999. However, assuming arguendo,
that claim 2 does not constitute a collateral attack on the grievance
process, we find that said claim has been rendered moot by the $6.00
payment received by complainant on June 11, 1999. We also find that
there is no reasonable expectation that this violation will recur.
Finally, we note that complainant has asserted that the agency's
actions constitute harassment. The Commission determines, however,
that when considered together and considered as true, these two claims
are insufficient to state a harassment claim. See Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the agency's final decision dismissing the complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 7, 2001
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.