Catherine A. LaMaur, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 5, 2000
01993091 (E.E.O.C. May. 5, 2000)

01993091

05-05-2000

Catherine A. LaMaur, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Catherine A. LaMaur, )

Complainant, )

)

v. ) Appeal No. 01993091

) Agency No. 4G-770-0120-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Upon review, the Commission finds that the complainant's complaint was

properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.107(a)(1)) for failure to state a claim.<1>

The complainant alleged that she was discriminated against on the

bases of race (Caucasian), color (White), sex (female), and retaliation

(prior EEO activity) when on October 12, 1998, her supervisor failed

to provide her union steward with information that the union steward

requested for the complainant's defense and management delayed hearing

her Step I grievance for 10 days.

On appeal, the complainant asserts that the agency's action was part of

a pattern of harassment, that denial of the request for documentation

was a due process error in the grievance process and that by its actions,

management sought to single her out and place her outside the protections

of the union agreement.

The Commission finds that the complaint constitutes a collateral attack on

the grievance process and therefore fails to state a claim. See Lingad

v. U.S. Postal Service, EEOC Request No. 05930106 (June 24, 1993);

Pietrewicz v. Department of Agriculture, EEOC Appeal No. 01994448

(October 27, 1999)(allegations that management prevented him from

receiving unemployment compensation benefits by failing to provide

necessary paperwork and providing false information constituted a

collateral attack on the unemployment compensation process); Shibel

v. Department of the Navy, EEOC Appeal No. 01987064 (August 12, 1999)(

allegation that complainant was harassed when he was denied immediate

access to a union official during the filing of his union grievance;

denied information for the processing of his grievance; denied a proper

investigation of his union grievance; and the negotiated union agreement

was not adhered to failed to state a claim because the allegations

constituted a collateral attack on the grievance process and involved

actions inextricably intertwined with the processing and administration

of appellant's grievance); Berthelot v. U.S. Postal Service EEOC Appeal

No. 01983687 (October 20, 1999)(allegations by complainant that he was

instructed to complete a form for workers' compensation benefits while

off the clock and denied representation and assistance in completing

the forms and that he had to go into the office to obtain the forms were

found to be outside the purview of the Commission and a collateral attack

on the workers' compensation process, regardless of the agency's alleged

pattern of harassment).

The Commission has recognized very narrow exceptions to the general

prohibition on collateral attacks and the present complaint does not

fall within the narrow exceptions. See Story v. U.S. Postal Service,

EEOC Request No. 05960314 (October 18, 1996); Ellis v. U.S. Postal

Service, EEOC Request No. 05920011 (March 12, 1992) (discriminatory

application of grievance process may state a claim). The proper

forum for the complainant to have raised his challenges is during the

grievance process itself. See Lau v. Nat'l Credit Union Administration,

EEOC Request No. 05950037 (March 18, 1996). It is inappropriate for

the complainant to now attempt to use the EEO process to collaterally

attack actions which occurred during the grievance process.

Accordingly, the agency's dismissal of the complaint was proper and is

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 5, 2000

________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.