Garry S. Ellis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 7, 2001
01996954 (E.E.O.C. Feb. 7, 2001)

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.