01984083_r
06-15-1999
Edith Y. Cheadle, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Edith Y. Cheadle, )
Appellant, )
)
v. ) Appeal No. 01984083
) Agency No. 4-G-752-0194-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On April 29, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on April 3, 1998,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. In her complaint,
appellant alleged that she was subjected to discrimination on the bases
of race (black), gender (female), and age (51) when:
On December 18, 1997, appellant was given a Letter of Warning (LOW)
for failure to observe safety rules and regulations; and
On December 19, 1997, appellant was given a LOW for failure to follow
instructions.
The agency dismissed both allegations pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for failure to state a claim. Specifically,
the agency found that both LOW's were issued as a result of grievance
settlements.
On appeal, appellant argues that the agency misinterpreted the background
of her case, and that otherwise her complaint would state a claim.
Appellant claims that she filed an EEO complaint when she received a
proposed LOW on March 11, 1997, and proposed suspensions on March 11
and March 28, 1997. She states that she later withdrew her complaint,
and filed a grievance. Appellant contends that a grievance settlement
dated November 18, 1997, and received by appellant on December 19, 1997,
consolidated all of the proposed disciplinary actions into a LOW for
unsatisfactory services. On May 21, 1997, appellant claims that she
received a seven (7) day suspension, which she served. Appellant argues
that she filed another grievance on this matter, which was reduced to
a LOW by a separate settlement agreement.
The agency does not dispute appellant's statement of the facts.
The record includes a copy of an arbitration settlement, dated November
11, 1997, which combined two proposed suspensions and a proposed LOW
into a single LOW for unsatisfactory services. The record also contains
a grievance settlement dated December 3, 1997, which reduced a seven
(7) day suspension to a LOW for failure to follow safety rules and
regulations. Further, in appellant's formal complaint, dated February
6, 1998, appellant alleged discrimination by the issuance of two LOW's,
on December 18 and 19, 1997.
EEOC Regulation 29 C.F.R. �1614.107(a) 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. 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).
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. Kleinman v.
United States Postal Service, EEOC Request No. 05940585 (Sept. 22, 1994);
Lingad v. United States Postal Service, EEOC Request No. 05930106 (June
24, 1993). Appellant's dissatisfaction with the LOW's issued as a result
of grievance settlements is merely a collateral attack of the outcome of
her grievance settlements. See Plowman v. United States Postal Service,
EEOC Appeal No. 01974107 (Sept. 2, 1997) (dissatisfaction with outcome
of grievance settlement fails to state a claim). The proper forum for
appellant to have raised her challenges was within the grievance process.
Therefore, appellant's allegations fail to state a claim.
CONCLUSION
Accordingly, the agency's decision to dismiss is AFFIRMED.
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:
June 15, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations