01a43250
08-05-2004
Brenda W. Farrell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brenda W. Farrell v. United States Postal Service
01A43250
August 5, 2004
.
Brenda W. Farrell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43250
Agency No. 4-K-230-0041-04
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated March 12, 2004, dismissing her complaint of
unlawful employment discrimination brought pursuant to 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. The Commission accepts the appeal.
See 29 C.F.R. � 1614.405.
On October 21, 2003, complainant contacted an EEO Counselor and
subsequently filed a formal complaint on January 31, 2004, claiming
discrimination on the bases of sex and age.
In its final decision dated March 12, 2004, the agency framed her claims
as follows:
In 1999, complainant was qualified for a "CFS" position, but a junior
employee was selected on August 10, 2002;
On October 19, 1999, complainant requested a transfer to any tour 2
position in Charlottesville, Virginia, but the Postmaster selected
another individual for a tour 2 position on October 21, 2000;
In May 2001, complainant applied for a carrier position that was awarded
to a junior employee on May 19, 2001;
On October 22, 2002, the grievance filed regarding her transfer to the
carrier craft was withdrawn by the "NALC" union;
On September 12, 2003, the "NALC" union representative advised complainant
that no action would be taken regarding the grievance filed; and
On October 22, 2003, an "APWU" union representative confirmed receipt
on October 19, 1999, of a letter.
The agency dismissed claims 1, 2, and 3 on the grounds of untimely EEO
Counselor contact, finding that complainant had constructive knowledge
of the 45-day time limit, and that the identified incidents occurred
significantly prior to this deadline. The agency dismissed claims 4,
5, and 6 on the grounds of failure to state a claim, finding that these
claims constituted a collateral attack against the union process, and
that complainant was not otherwise aggrieved in a term or condition of
employment as a result of the union's action.
On appeal, in pertinent part, complainant argues that her date of EEO
Counselor contact was dictated by the delays of management and the union
in addressing the claims as raised in her grievance. Complainant further
avers that because she has been passed-over for reassignment, due to
the agency's failure to consider her October 19, 1999 letter requesting
a reassignment, which should have given her priority/seniority over the
selectees, she is now mis-placed on the seniority list.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Complainant does not dispute that the incidents which occurred in claims
1, 2, and 3 occurred well beyond the 45-day time limit, nor does she claim
that she was not aware of the time limit.<1> Instead, complainant argues
that her contact must be deemed timely because she timely pursued her
claims in the union grievance process, and then immediately contacted an
EEO Counselor when this proved to be unsuccessful. However, it is well
established that the time limit at issue will not be waived because
complainant chose to pursue her rights outside of the EEO process.
See Vaughn-Walker v. Department of Veterans Affairs, EEOC Appeal
No. 01A04037 (August 3, 2001), request for reconsideration denied,
EEOC Request No. 05A11070 (February 4, 2002). Moreover, we find that
complainant does not allege that she made, or the agency denied, a
transfer request within the applicable 45-day time period. Accordingly,
we AFFIRM the agency's dismissal of claims 1, 2, and 3.
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). Such a claim must be dismissed
on the grounds of failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In claims 4 and 5, complainant argues that the union failed to address
the "arbitrary method of selection" used by the agency regarding the
matters raised in claims 1, 2, and 3, even after obtaining a copy of her
October 19, 1999 letter (claim 6), which she asserts proves that she
should have been given priority/seniority in this process, and seeks
redress in the EEO process. We concur with the agency that claims 4, 5,
and 6 constitute a collateral attack on the union's action in this matter.
It is inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the grievance process. Accordingly,
we AFFIRM the agency's dismissal of claims 4, 5, and 6.
In conclusion, for the reasons set forth above, we AFFIRM the agency's
dismissal of the captioned complaint.
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
August 5, 2004
__________________
Date
1We note that the agency submits evidence
of placement of EEO posters containing the 45-day time limit in the
vicinity of complainant's work area, thereby demonstrating complainant's
constructive notice of the time limit.