01A22231_r
06-24-2002
Lourdita L. Bragado, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lourdita L. Bragado v. United States Postal Service
01A22231
June 24, 2002
.
Lourdita L. Bragado,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22231
Agency No. 4-J-600-0035-02
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. In a complaint dated December 10, 2001, complainant claimed
she was subjected to discrimination on the bases of race and national
origin when a Caucasian co-worker received more favorable treatment and
was allowed to return to duty after being removed for the same infraction
as complainant.
In its final decision dated January 29, 2002, the agency dismissed the
complaint for failure to state a claim. Specifically, the agency found
that complainant's claim constitutes a collateral attack on a grievance
process.
The record in this case contains a copy of an arbitrator's decision, dated
April 2, 2001, wherein complainant's discharge from agency employment
for removing and opening mail without authorization was determined to
be for reasonable cause and was upheld, and complainant's grievance on
this matter was �denied in its entirety.�
The Commission finds that the complaint is properly dismissed for
failure to state a claim. The Commission has held that an employee
cannot use the EEO complaint process to lodge a collateral attack on
another forum's 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 arbitration proceeding was at
that proceeding itself. Lau v. National Credit Union Administration,
EEOC Request No. 05950037 (March 18, 1996). It is inappropriate to
now attempt to use the EEO process to collaterally attack actions which
occurred during the grievance process. Accordingly, the agency's final
decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 24, 2002
Date