0120081706
08-15-2008
Leigh T. Buonagurio, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leigh T. Buonagurio,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081706
Agency No. 1E-853-0048-07
Hearing No. 540-2008-00015X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 22, 2008 final order concerning her
equal employment opportunity (EEO) complaint. Complainant alleged
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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In her formal complaint filed on July 23, 2007, complainant claimed that
the agency discriminated against her on the bases of sex (female) and
age (more than 40) when, after being reinstated on or around March 31,
2007, she was not compensated for wages and benefits lost when she was
removed from the Agency in 1998.1
Following an investigation, complainant was provided a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge. On February 14, 2008, the AJ issued a decision dismissing the
complaint for failure to state a claim. The agency subsequently issued a
final order dated February 22, 2008, fully implementing the AJ's decision,
which is the subject of the instant appeal.
In her decision, the AJ determined that complainant's complaint
represents a collateral attack on the grievance process which adjudicated
complainant's termination. The AJ noted that, pursuant to a July 21,
2003 grievance settlement, complainant's termination was reduced to
a suspension without back pay or benefits. The AJ contends that if
complainant was dissatisfied with the back pay and benefit provision of
the grievance settlement, she should have raised it in the proper forum.
The AJ further noted that complainant failed to identify an adverse
action taking against her in her present position that affected a term,
condition or privilege of her employment.
The Commission finds that complainant's allegation that she was not
compensated for lost wages and benefits after being reinstated to agency
rolls in March 31, 2007, arises from her initial removal from the agency
in 1998, which was settled during the grievance process. 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). The proper forum for complainant to have raised her
challenges to actions which occurred during the grievance proceeding
was at that proceeding itself. It is inappropriate to now attempt to
use the EEO process to collaterally attack actions which occurred as a
result of her grievance.
Although complainant also alleged the agency's noncompliance with her
grievance settlement agreement, the Commission notes that this matter
is beyond the scope of our regulations. Accordingly, the agency's final
action implementing the AJ's decision dismissing complainant's complaint
for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 15, 2008
Date
1 We note that subsequent to her request for a hearing, complainant
requested that her complainant be amended to include her 1998 termination.
The Administrative Judge (AJ) denied the amendment, noting complainant's
failure to raise this matter within 45 days of the event. 29 C.F.R. �
1614.107(a)(2). We agree that this incident was a discrete act which
should have been raised within the time prescribed by our regulations.
Complainant failed to proffer adequate justification for her delay.
We conclude, therefore, that the AJ did not abuse her discretion when
she declined to amend the complaint to include complainant's termination
claim for failure to raise this matter within 45 days of the event.
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0120081706
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081706