Sharon Ford, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 15, 2004
01A45209 (E.E.O.C. Nov. 15, 2004)

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