01992765
12-14-1999
Barbara Janak, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara Janak, )
Complainant, )
)
v. )
) Appeal No. 01992765
William J. Henderson, ) Agency No. 4-G-770-0074-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On February 16, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated January 21, 1999,
dismissing her complaint for failure to state a claim.<1> The Commission
accepts the appeal in accordance with EEOC Order No. 960, as amended.
Complainant contacted the EEO office alleging that she was discriminated
against when on September 16, 1998, she had not received the agreement
pay, annual leave, and sick leave outlined in a grievance settlement.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on November 30, 1998, complainant filed a formal complaint
based on race, color, sex, age, and retaliation.
The agency issued a FAD dismissing the complaint for failure to state
a claim. Specifically, the agency stated that, based on a fair reading
of the complaint, complainant alleged discrimination when the provisions
of a grievance settlement were not processed. According to the FAD,
the complainant's claim was an impermissible collateral attack.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 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 22, 1994).
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense , EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). Here, complainant states in her
complainant that she has not received the �told agreed settlement on
grievance #015-40-96DA....� The proper forum for complainant
to have raised her challenges was within the grievance process. It is
inappropriate to now attempt to use the EEO process to collaterally attack
actions which occurred during the arbitration process. Therefore, the
agency's decision to dismiss the complaint for failure to state a claim
was proper and is AFFIRMED.
We note that on appeal, complainant contends that �[t]his issue is
far greater than a mere contractual failure� and refers to �continued
abuses�, �disparate treatment�, and �harshly imposed arduous work
conditions.� A review of the record reveals that only the agreement
issue was raised with a counselor and included in the formal complaint.
Therefore, complainant is advised that if she wants to pursue, through
the EEO process, the additional claims she raised for the first time
on appeal, she must initial EEO counseling within fifteen days after
she receives this decision. The agency is advised that if complainant
seeks EEO counseling regarding any new claims raised on appeal within
the above fifteen-day period, the date complainant filed the appeal
statement in which she raised these claims shall be deemed to be the
date of the initial EEO contact, unless complainant previously contacted
an EEO Counselor regarding these matters. If there has been a previous
contact, the earlier date would serve as the EEO Counselor contact date.
See Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January
16, 1998); Parker v. Department of the Army, EEOC Request No. 05960025
(August 29, 1996).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
December 14, 1999
______________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ ________________________
Date Equal Employment Assistant1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.