0120110112
03-03-2011
Ardrith L. Barnett, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Ardrith L. Barnett,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120110112
Agency No. 4E640008910
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated August 25, 2010, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Sales/Service Distribution Associate at the Agency's Blue Valley
Branch facility in Overland Park, Kansas.
The record indicates that Complainant received a Notice of Removal which
she challenged through the Agency's negotiated grievance procedure.
The grievance eventually resulted in a pre-arbitration settlement
agreement, where the removal was reduced to a suspension and Complainant
was instructed to return to work. While not entirely clear from the
record, it appears that Complainant needed some medical services in order
to return to work. The grievance settlement provided Complainant with
payment of $2,000 that was apparently intended to pay for the medical
services she needed.
On August 13, 2010, Complainant filed an EEO complaint alleging that
the Agency subjected her to discrimination on the basis of disability
when a union steward tried to convince her to retire; and when the
pre-arbitration settlement agreement did not restore her medical
insurance so she could not return to work. The Agency dismissed the
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. The instant appeal followed without comment from Complainant.
ANALYSIS AND FINDINGS
Regarding the actions of the union steward, he Commission finds that
the matter fails to state a claim under the EEOC regulations because
Complainant failed to allege that she suffered harm or loss with respect
to a term, condition, or privilege of employment for which there is
a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
With regard to the terms of the pre-arbitration settlement agreement,
the Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman
v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994);
Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
The proper forum for Complainant to have raised her challenges to actions
which occurred during the grievance proceeding was at that proceeding
itself. It is inappropriate to now attempt to use the EEO process to
collaterally attack actions which occurred as a result of her grievance.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 3, 2011
__________________
Date
2
0120110112
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110112