0120102044
08-27-2010
Beverly A. Lussier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Beverly A. Lussier,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120102044
Agency No. 4E800005310
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 25, 2010, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision dismissing Complainant's complaint for failure to state a claim.
ISSUE PRESENTED
Whether the Agency properly dismissed Complainant's complaint on the grounds that it failed to state a claim.
BACKGROUND
At all times relevant to the alleged discriminatory action, Complainant worked as a Clerk at the Agency's Fort Carson Post Office in Fort Carson, CO. The record indicates that on December 17, 2009, Complainant entered into a settlement agreement with the Agency pursuant to a Step II Union Grievance. The settlement addressed Complainant's contentions that her supervisor instructed her to return home on November 5, 7, and 9, 2009, respectively, to retrieve her Postal uniform for which time she was charged AWOL. The settlement modified Complainant's personnel record to reflect "Other Paid Leave" in place of AWOL. The record indicates that Complainant agreed that the settlement constituted a full and complete resolution of the matters alleged in her grievance.
In her complaint dated March 11, 2010, Complainant alleged that the Agency subjected her to discrimination on the bases of sex (female), disability (physical), and reprisal for prior protected EEO activity under Title VII when:
1. On November 5, 2009, she was instructed to leave work and return with the proper Postal uniform.
The record reveals that on March 25, 2010, the Agency issued a decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a) for failure to state a claim.
CONTENTIONS ON APPEAL
Complainant does not submit arguments on appeal.
On appeal, the Agency requests that the Commission affirm its final decision.
FINDINGS AND ANALYSIS
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 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, � 1614.106(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).
Following a review of the record, we find that Complainant's allegation constitutes a collateral attack on the Step 2 Grievance settlement dated December 17, 2009. We note in this regard that that Complainant's complaint concerns matters which are the same as those resolved in the settlement. Specifically, in her settlement, Complainant alleged that her supervisor (S1) instructed her to return home to obtain her Postal uniform on November 5, 7, and 9, 2009. Complaint File, Union Grievance Appeal at 1. Complainant further averred that S1 charged her AWOL for these incidents.
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. Hughes v. Social Security Administration, EEOC Request No. 05990698 (November 4, 1999). The appropriate forum for Complainant to raise any concerns that she may have with the grievance settlement is through the grievance process itself. Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed.
CONCLUSION
Based on a thorough review of the record, the Commission finds that the Agency appropriately determined that Complainant failed to state a claim of discrimination. Accordingly, it is the Commission's decision to AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
______8/27/10____________
Date
2
0120102044
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102044