01A40068_r
08-05-2004
David R. Ream, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David R. Ream v. United States Postal Service
01A40068
8/5/2004
.
David R. Ream,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40068
Agency No. 1H-302-0080-02
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 9, 2003, dismissing his 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
Complainant initiated EEO Counselor contact on May 26, 2002. Informal
efforts to resolve his concerns were unsuccessful. In his formal
complaint dated July 28, 2003, complainant alleged that he was subjected
to discrimination on the bases of race, age, and in reprisal for prior
EEO activity.
In its final decision dated September 9, 2003, the agency determined
that complainant's complaint was comprised of the following claim:
Breach of settlement from previous EEO case when [complainant] was sent
to North Metro in December 2001 [and] that others were allowed to return
to old runs and work locations.
The agency dismissed complainant's complaint for failure to state a
claim, pursuant to 29 C.F.R � 1614.107(a)(1). Specifically, the agency
stated that while the record indicates that complainant entered into
a pre-arbitration agreement, there is no evidence that complainant
entered into an EEO settlement agreement with the agency. Moreover,
the agency stated that complainant's claims that the agency breached
a pre-arbitration agreement represent a collateral attack on another
forum's proceeding.
On appeal, complainant states that the settlement of union case H98V-1H-C
001568652000089 has been breached. In addition, complainant asserts
that he has not received any continuation of pay.
In response, the agency reiterates that there is no evidence that
complainant entered into an EEO settlement agreement. In addition,
the agency asserts that complainant's claims regarding the processing of
his workers' compensation claim are outside the purview of the Commission.
The Commission finds that the agency properly dismissed complainant's
complaint. A fair reading of the record reflects that complainant
is alleging breach of a settlement agreement and dissatisfaction
with the processing of his workers' compensation claim. The record
contains copies of two Pre-Arbitration Decisions dated February 6,
2001 and April 26, 2001. The Pre-Arbitration Decisions refer to
grievance appeals for Regional Case Nos. H98V-1H-D0014952020000844 and
H98V-1H-C0015686520000889. The Pre-Arbitration Decisions do not refer
to the settlement of any EEO cases.
Furthermore, the record is devoid of evidence that complainant entered
into a settlement agreement in resolution of an EEO case. In the instant
case, the Commission finds that complainant's claims are not within the
purview of the Commission. 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).
The proper forums for complainant to have raised these claims are within
the negotiated grievance procedure and the workers' compensation process.
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED.
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
8/5/2004
Date