01A31690_r
05-12-2003
Thomas M. Ziegler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas M. Ziegler v. United States Postal Service
01A31690
May 12, 2003
.
Thomas M. Ziegler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31690
Agency No. 1E-801-0137-02
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 8, 2003, dismissing his complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The record indicates that complainant filed his complaint alleging
discrimination on the basis of age when:
On May 29, 2002, he was issued a Letter of Warning (LOW) for failure to
follow instructions, which was reduced to an official discussion; and
His supervisor refused to bargain in good faith in attempting to settle
the union grievance.
The agency found that the LOW was reduced to an official discussion
by a grievance settlement dated August 3, 2002. The agency dismissed
claims 1 and 2 pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim. The Commission finds that the issuance of the
LOW rendered complainant aggrieved and states a claim. The Commission
determines, however, that this claim is more properly considered in
terms of whether it has been rendered moot pursuant to 29 C.F.R. �
1614.107(a)(5).
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) states that the agency shall
dismiss a complaint that is moot. In County of Los Angeles v. Davis,
440 U.S. 625 (1979), the Supreme Court held that where the only matter
to be resolved is the underlying issue of discrimination, a case can be
closed if:
(1) it can be said with assurance that there is no reasonable expectation
that the violation will recur; and
(2) interim relief or events have completely eradicated the effects of
the alleged violation.
The record contains a copy of the grievance settlement between the
parties. The agreement provides that the LOW issued to complainant
was reduced to an official discussion. However, the agreement does not
provide for the removal of the LOW from all files and records. Moreover,
on appeal, complainant contends that his supervisor is using his past
LOW as a basis to take other disciplinary action against him.
In response to complainant's appeal, the agency fails to submit any
evidence in the record to show that the LOW was removed and reduced to an
official discussion. Based on the foregoing, the record is insufficient
for the Commission to determine whether the alleged matter is moot.
Therefore, the Commission finds that the agency's dismissal of claim 1
is hereby VACATED.
With respect to claim 2, the Commission determines that the proper
forum for addressing whether complainant's supervisor acted in good
faith with respect to negotiating the grievance settlement between
the parties is through the grievance process and not the EEO complaint
process. Complainant has not shown how the matter raised in claim 2
adversely affects a personal loss or harm regarding a term, condition,
or privilege of complainant's employment. The Commission AFFIRMS the
agency's dismissal of claim 2 of complainant's complaint.
Accordingly, the agency's final decision with respect to claim 1 is
VACATED and claim 1 is REMANDED to the agency for further processing in
accordance with this decision and applicable regulations. The agency's
decision with respect to claim 2 is hereby AFFIRMED for the reasons set
forth herein.
ORDER
The agency is ORDERED to take the following action regarding claim 1:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall supplement the record with any evidence including
statements, indicating that complainant's Letter of Warning dated May 28,
2002, has been removed from all files and records and that it has reduced
the same to an official discussion. The agency shall determine whether
claim 1 is moot. Based on the foregoing information, within thirty
(30) calendar days of the date this decision becomes final, the agency
shall issue a new final decision dismissing the claim or issue a notice
of acceptance of the claim.
A copy of the agency's final decision or the notice of acceptance of
claim 1 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 (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
May 12, 2003
__________________
Date