0120073240
10-12-2007
Peggy S. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Peggy S. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073240
Agency No. 1K-211-0010-07
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated June 12, 2007, dismissing her complaint of
unlawful 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. Complainant alleged that she was subjected
to discrimination based on her race (unspecified), sex (female), age
(born in 1947), and reprisal for EEO activity, as applicable, for prior
protected EEO activity when:
1. on October 13, 2006, your pay stub showed that your grade had been
changed from EAS-17, to EAS-24, and then it reverted back to EAS-17 the
next pay period,
2. you did not receive a pay for performance evaluation,
3. you were charged with a debt of $415.32 for the two weeks you were
paid at the higher level (EAS-24),
4. on October 19, 2006, an agency attorney told your attorney he could
open up your mail which contained a settlement check,
5. on October 24, 2006, you requested and received a retirement annuity
package from the Office of Personnel Management which was completely
different from the one your attorney had given you to sign,
6. on January 19, 2007, management called you at work harassing you
about where to send a check for $2,425,
7. on January 31, 2007, management stated that they were made aware
that you were officially retired, you were asked to surrender your
identification badge and time card, and then escorted out of the
building,
8. on an unspecified date you were made aware that you were charged 16
hours of leave without pay (LWOP) (complainant wrote she has been on
LWOP since January 31, 2007), and
9. on March 16, 2007, you were made aware that your claim for unemployment
was denied because the agency stated you voluntarily resigned on January
31, 2007.
The FAD dismissed the complaint for failure to state a claim and stating
the same claim that is pending or has been decided by the agency or
Commission.1
Prior to the events in the complaint, on September 13, 2006, complainant
entered into a settlement agreement with the agency settling some prior
EEO complaints. In summary, among other things, it was agreed that the
agency would pay complainant a lump sum of $2,425 for reimbursement of
travel expenses, would enhance its retirement contributions to complainant
by retroactively promoting her from an EAS-17 to an EAS-24 beginning on
January 24, 2004, January 22, 2005, and January 21, 2006, with concomitant
retirement contributions, but no increased back pay; would ask the Office
of Personnel Management to prepare an estimated annuity calculation for
complainant by no later than October 13, 2006, and complainant would
retire January 31, 2007. Complainant contended that the agency breached
the settlement agreement. In Johnson v. United States Postal Service,
EEOC Appeal No. 0120071764 (July 26, 2007), request for reconsideration
denied, EEOC Request No. 0520070869 (September 21, 2007), the Commission
found that the agency complied with the settlement agreement.
The FAD dismissed some claims in the complaint before us for failure to
state a claim. The regulation set forth at 29 C.F.R. � 1614.107(a)(1)
provides, in relevant part, that an agency shall dismiss a complaint
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, .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).
In dismissing claims 1 through 8, the agency FAD found, in part,
that they were the same matters covered in complainant's breach of
settlement agreement claim. We find claims 4 through 8 regard the
agency's implementation of the settlement agreement. Specifically,
claim 4 is the agency informing complainant's attorney that he could
open an envelope containing a settlement check for complainant. To the
extent this is an independent claim, we agree with the finding in the
FAD that it fails to state a claim because complainant was not harmed.
The attorney was complainant's agent. Claim 5 regards proper annuity
payments resulting from agency contributions per the settlement agreement.
Claim 6 regards the agency attempting to implement the settlement
agreement by asking for the address to send a check. Claim 7 regards
the agency enforcing the settlement agreement by informing her she was
officially retired and having her leave the workplace, and claim 8 regards
not paying complainant salary as an active employee after that time.
Complainant declined to leave the workplace because she claimed breach.
Because complainant agreed to retire per the settlement agreement,
she was not harmed by the events in claims 7 and 8. In light of the
Commission's previous finding of no breach, claims 4 through 8, which
regard the implementation of the settlement agreement, are dismissed.
Further, the FAD properly found that claims 4, 6, and 7 fail to state
a claim because complainant was not harmed.2
The FAD dismissed claims 1, 2 and 3 as being the same matters as the
breach of settlement agreement claim. We disagree. The settlement
agreement did not contain terms raising and lowering complainant's pay
level from EAS-17 to EAS-24 for one pay period in October 2006, with a
concomitant overpayment and debt charge of $415.32, nor a promise to
do an associated pay for performance evaluation. We find, however,
that these matters fail to state a claim. The agency erroneously
raised complainant's pay for a pay period, and then requested return
of the overpayment. Failing to get a pay for performance evaluation
at that time in association with the error did not harm complainant.3
While these matters were an inconvenience for complainant, they do not
rise to the level of actionable harm.
Claim 9 is 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 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 raise challenges to
actions which occurred during the unemployment benefit administrative
determinations process is in that process, and to take any appeals from
that process.
Accordingly, the FAD 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
October 12, 2007
__________________
Date
1 The FAD dismissed claim 9 by omission. On appeal, the agency argues
claim 9 fails to state a claim.
2 We need not determine whether the FAD correctly found that claim
5 states a claim because it regards the breach of settlement claim,
which has already been resolved against complainant.
3 Complainant received a lump sum pay for performance award on or about
January 26, 2007. She previously received such an award round the same
time in 2006. The 2006 notification of personnel action indicated the
merit annivsary date would be about a year later.
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0120073240
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073240