01A45209
11-15-2004
Sharon Ford, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon Ford v. United States Postal Service
01A45209
11-15-04
.
Sharon Ford,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45209
Agency No. 4G-760-0076-02
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision (FAD) dismissing 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 Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The record indicates that complainant was employed at the Bardin Road
Station in Arlington, Texas. On February 15, 2000, she was notified
of her impending removal for being absent without leave (AWOL).
Complainant filed a grievance which was settled. The record contains
a copy of the settlement agreement that was negotiated by the union on
complainant's behalf. In the agreement, which was signed by complainant,
she agreed to withdraw her EEO complaint and grievances, and to return
to duty with the only limitations being those listed in an April 16,
1999 work limitation form. On October 5, 2001, her union representative
sent her a letter indicating that she should contact management at the
Bardin Road station in order to arrange a return to duty. She was also
told that her failure to return could result in her removal.
Complainant did not return to work or contact management. She filed an
EEO complaint alleging that she was retaliated against due to her prior
EEO activity when she was notified, on October 5, 2001, by her union
representative to return to work in the same duty assignment which
was against her doctor's medical restrictions and with no back pay.
Following an investigation, complainant was informed of her right to
an administrative hearing before an EEOC Administrative Judge (AJ).
Complainant elected to have the hearing.
At the pre-hearing conference, complainant requested that her allegation
be amended as follows:
Was the complainant discriminated against on the basis of retaliation
(prior EEO activity) when, on October 5, 2001, she was returned to the
same duty assignment which was allegedly against her doctor's medical
restrictions and with no back pay, and doing so, the agency failed to
reasonably accommodate her thereby discriminating against her on the
basis of her alleged disability.
Over the agency's objections, the AJ approved the amendment. On May 10,
2004, the AJ, after notifying the parties and considering their responses,
dismissed complainant's complaint on the grounds that she failed to state
a claim. According to the AJ, complainant was collaterally attacking
the grievance settlement and should have pursued the matter through
that process.
On appeal, complainant maintained that her claim was not a collateral
attack on the grievance process, but was based on the agency's continued
failure to accommodate her which was raised in her "previous EEO claim
that was not heard." We disagree. 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. U.S. Postal Service,
EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal
Service, EEOC Request No. 05930106 (June 24, 1993). Like the AJ, we
find that complainant's entire claim "flows directly from a settlement
agreement reached between the union and the agency in order to resolve
the grievance over her removal. Essentially, the complainant is not in
agreement with the assertions in the October 5, 2001 letter sent to her
by Union Representative . . . ." The AJ also indicated that "the remedy
for complainant's dissatisfaction with the resolution of her grievance
lies outside this forum."
Accordingly, the agency's final decision dismissing complainant's
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
____11-15-04______________
Date