01976218
10-02-1998
Deborah A. Harris, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Deborah A. Harris, )
Appellant, )
)
v. ) Appeal No. 01976218
) Agency No. 1K-221-0096-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed three allegations in appellant's complaint, pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
Additionally, we find that a fourth allegation should have been dismissed,
pursuant to 29 C.F.R. �1614.107(a), for raising a matter that states
the same claim that was pending before or was decided by the agency or
Commission. In its July 14, 1997 formal decision, the agency identified
the allegations in appellant's complaint as whether she was subjected
to discrimination on the bases of race (unspecified), color (Brown),
national origin (American), and sex (female) when:
On an unspecified date, management did not comply with a negotiated
grievance settlement in which the agency was to pay appellant for the
time she lost during her emergency placement;
On an unspecified date, management did not comply with a negotiated
grievance settlement in which the agency was to have provided training
for a Manager, Distribution Operations, causing appellant to suffer
harm due to her grievance settlement not being signed;
On January 4, 1997, appellant was placed on emergency placement rather
than given training; and
From March 1 - 15, 1997, appellant served a suspension that was issued
to her on January 25, 1997.
A review of the record indicates that appellant raised a fifth
allegation which was not addressed by the agency in its final decision.
Specifically, appellant also alleged that she was subjected to
discrimination on the bases of race (unspecified), color (Brown),
national origin (American), and sex (female) when:
On an unspecified date appellant's supervisor was involved in a verbal
altercation but was not placed into emergency placement.
On July 14, 1997, the agency issued a final decision accepting allegation
(4) for investigation, and dismissing allegations (1) and (2) for failure
to state a claim, and allegation (3), pursuant to 29 C.F.R. �1614.107(b),
for failure to initiate contact with an EEO Counselor in a timely manner.
Specifically, the agency determined that because allegations (1) and
(2) concerned a negotiated grievance settlement that was never accepted
by appellant or her union, she was not aggrieved by alleged violations
of the agreement. Additionally, the agency determined that appellant's
March 18, 1997 initial EEO Counselor contact occurred more than forty-five
(45) days from the date on which the incident identified in allegation
(3) occurred, and was, therefore, untimely.
The record contains a copy of the agency's final decision concerning
a prior EEO complaint appellant filed, identified as Agency
No. 1K-221-0084-97. In that complaint, appellant raised her January 4,
1997 emergency placement as an allegation to be processed. The prior
final decision accepted this allegation for investigation. The record
also contains the negotiated grievance settlement agreement to which
appellant referred in allegations (1) and (2), which is unsigned by
appellant or her union. Further the record contains a letter from
appellant dated February 26, 1997, in which she specifically rejected
the settlement agreement.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex, and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age), the Rehabilitation Act (discrimination
on the basis of disability), and the Equal Pay Act (sex-based wage
discrimination) shall be processed in accordance with part 1614 of
the EEOC regulations. In addition, the U.S. Supreme Court has stated
that an employee is aggrieved when some personal loss or harm has been
suffered with respect to a term, condition, or privilege of employment.
See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205
(1972). Specifically, an employee must allege and show a "direct,
personal deprivation at the hands of the employer, that is, a present
and unresolved harm or loss affecting a term, condition or privilege of
his/her employment". Taylor v. USPS, EEOC Request No. 05900367 (June 2,
1990); Hammonds v. USPS, EEOC Request No. 05900863 (October 31, 1990).
In the instant complaint, allegations (1) and (2) concern alleged
violations of a negotiated grievance settlement agreement that was
never implemented. As such, appellant is not aggrieved as a result of
any alleged violations of the agreement. Moreover, the Commission has
held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. Kleinman v. USPS, EEOC Request
No. 05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No.
05930106 (June 24, 1993). The proper forum for appellant to have raised
allegations of breach of a negotiated grievance settlement agreement was
within the negotiated grievance process itself. It is inappropriate to
now attempt to use the EEO process to collaterally attack actions which
occurred during the negotiated grievance process. Accordingly, the agency
properly dismissed allegations (1) and (2) for failure to state a claim.
The Commission notes that the agency failed to address appellant's
allegation concerning her supervisor's verbal altercation with another
employee, and the Commission deems the agency's action to be tantamount
to a dismissal of that matter. We find, however, that the dismissal
was proper. Allegation (5) concerns the agency's failure to discipline
appellant's supervisor after a verbal altercation with another employee.
Appellant failed to show how she suffered harm with respect to the terms,
conditions, or privileges of her employment as a result of this failure.
To the extent that appellant contends that her own receipt of discipline
for a similar offense evidences discrimination, appellant will be able to
raise the matter within the processing of that allegation. As a result
of the foregoing, allegation (5) should have properly been dismissed
for failure to state a claim.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
The record discloses that appellant filed a prior complaint, identified
as Agency No. 1K-221-0084-97, in which she raised her January 4, 1997
emergency placement as an issue. Whether or not appellant could have
instead been provided training in lieu of the emergency placement is
properly within the scope of the prior complaint. Consequently, the
agency should have dismissed allegation (3) for raising the same matter
that was the subject of a prior complaint.
Accordingly, the agency's final decision dismissing four allegations in
appellant's complaint is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Oct. 2, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations