0120091015
06-09-2009
Dana M. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dana M. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091015
Agency No. 1J-484-0028-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 5, 2008, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of race (African-American), disability, age (44), and reprisal
for prior protected EEO activity when:
1. since February 2004, she was subjected to a hostile work environment
including when on or about February 24, 2004, she was involuntarily
reassigned from Tour 3 to Tour 1; on March 13, 2004, she was given a
pre-disciplinary interview; during May 2004, her request for Family and
Medical leave Act (FMLA) was denied and FMLA procedures/regulations were
violated; she was not officially notified to return to work after her
grievance was settled on or about May 25, 2004; she was charged absence
without leave (AWOL) from April 26, 2004 to June 4, 2004; and she received
a proposed removal dated June 4, 2004, which was used to demote her;
2. on or about April 9, 2008, management refused to respond to a request
for information made by her union representative;
3. she received a letter of decision dated April 29, 2008, removing her
effective May 16, 2008 for failure to adhere to attendance regulations;
4. on July 31, 2008, the plant manager refused to discuss her case during
a meeting with the union president; and
5. on October 9, 2008, the terms of a settlement agreement dated August
10, 2008, was breached during an arbitration hearing.
The agency dismissed claims 1 through 3 on the ground that complainant
failed to timely initiate contact with an EEO counselor. It reasoned
that complainant contacted an EEO counselor on August 4, 2008, beyond
the 45 calendar day time limit to do so. 29 C.F.R. � 1614.105(a)(1) &
.107(a)(2).1 The agency dismissed a portion of claim 1 on the grounds
that complainant previously filed EEO complaint 1J-484-0002-07 dated
January 9, 2007, on identical matters, i.e., the proposed removal dated
June 4, 2004, and demotion. It dismissed claims 2, 4 and 5 for failure to
state a claim. For claim 5 it found that the settlement agreement was a
grievance resolution between the agency, the union, and the complainant,
and reasoned, in part, that the Commission does not have authority to
enforce a settlement reached in the grievance forum.
On appeal, complainant makes no argument. In opposition to the appeal,
the agency argues that its final decision dismissing the complaint should
be affirmed.
We agree that complainant failed to timely initiate EEO counseling
on claims 1, 2 and 3. Even if we use the contact date of August 4,
2008 with the EEO counselor, these claims are untimely. Further, as
referenced above, a portion of claim 1 is part of a prior EEO complaint;
and the agency dismissed that complaint on January 26, 2007. Accordingly,
the referenced portion of claim 1 was properly dismissed for stating
the identical claim in a prior complaint that was decided by the agency.2
Claim 4 regards the agency's refusal to entertain settling complainant's
removal matter. This does not state a claim because the parties are
free to engage or not engage in settlement matters, and this does not
implicate a term, condition or privilege of employment.
Claim 5 alleges a breach of a grievance settlement. The place to allege
breach of a grievance settlement is in the grievance process, not the
EEO administrative forum. Veasley v. United States Postal Service, EEOC
Appeal No. 01A40677 (April 12, 2004). We note, in any case, that while
complainant alleges that the settlement agreement was breached because
it was introduced in her arbitration case on her removal, there is no
provision in the settlement agreement prohibiting such a submission.
The final agency decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
June 9, 2009
__________________
Date
1 The agency accurately argues that complainant did not raise claims 1 and
2 with the EEO counselor. It deemed her EEO contact on these claims to be
on November 21, 2008, when she filed her complaint raising these claims.
This was permissible.
2 We need not determine whether claim 2 states a claim since we affirm
its dismissal for complainant's failure to timely initiate EEO counseling.
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0120091015
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091015