01a52422
03-31-2005
Talonda L. Bell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Talonda L. Bell v. United States Postal Service
01A52422
03-31-05
.
Talonda L. Bell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52422
Agency No. 4H-330-0197-03
Hearing No. 150-2004-00142x
DECISION
Talonda L. Bell (complainant) filed an appeal from the September 8,
2004, final decision of the United States Postal Service (agency),
which agreed to implement the summary decision of the Administrative
Judge (AJ) finding that the complaint failed to state a claim.<1> The
appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted in
accordance with 29 C.F.R. � 1614.405.
Complainant claimed discrimination based on race/color (black) and sex
when she was not converted to a full-time position on November 30, 2002.
In March 2001, following restructuring, 87 full-time residual vacancies
remained at the agency's Miami facility, and, at that time, 86 part-time
flexible (PTF) employees applied for conversion to full-time flexible
(FTF) positions. The agency did not immediately fill these positions,
and the union filed a grievance. An arbitrator found that the agency
had violated the collective bargaining agreement but returned the matter
to the parties for settlement. The resulting settlement agreement on
November 15, 2002, identified the specific PTF employees to be converted
to FTF. Complainant, a PTF, was senior to at least one of the converted
employees but was not converted. Complainant sought EEO counseling and
filed the instant complaint.
In his decision, the AJ found that the complaint was an attack on a
resolution in another forum and that complainant may not use the EEO
process to collaterally attack that settlement agreement. The AJ also
noted that the union, in a letter dated November 26, 2002, acknowledged
that it was aware that PTFs were converted to FTFs out of seniority
order and explained that not all PTFs had sought conversion to FTF when
the residual vacancies became available.
In an appeal statement, complainant contended that the November 15, 2002,
agreement was an "unlawful employment practice" and responsibility for
non-discrimination lay with the agency. Also, in documents contained in
the record, suggestions of favoritism, preferences for certain protected
classes, and other improper selection methods were alleged to have been
used to identify the employees to be converted. The agency argued that
the EEO complaint was a collateral attack on the agreement, that the
union designated the employees to be converted, and that complainant
could not establish a prima facie case, since employees of all protected
bases were converted.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. Hannon
v. Department of the Treasury, EEOC Request No. 05A01149 (May 8, 2003);
see Wills v. Department of Defense, EEOC Request No. 05970596 (July 30,
1998). We find that the instant complaint is just such a collateral
attack on a resolution in the grievance process. As noted by the AJ,
remedy for an action or decision in another forum must be addressed in
that forum. We find that the complaint was properly dismissed by the
AJ for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED, as
modified.
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
__03-31-05________________
Date
1The agency also stated that the AJ found no discrimination; in fact,
the AJ dismissed the complaint. Since the complaint was dismissed prior
to consideration on its merits, it is not correct to state that the AJ
made a decision on the merits of the complaint.