01A34923_r
12-09-2003
Diana W. Hayes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Diana W. Hayes v. United States Postal Service
01A34923
December 9, 2003
.
Diana W. Hayes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34923
Agency No. 1J-603-0069-01
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated July 21, 2003, regarding 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. In her
complaint, complainant alleged that she was subjected to discrimination on
the bases of race, color, sex, and reprisal for prior EEO activity when:
On August 30, 2001, complainant was denied access to the agency's Bedford
Park Postal Facility to conduct union business.
On September 11, 2001, complainant was denied access to the agency's
Bedford Park Postal Facility to conduct union business.
In the agency's final decision, the agency determined that no
discrimination occurred when complainant was denied access to the
agency's facility to meet with an employee in her capacity as a union
representative to discuss the co-worker's EEO complaint and related
union grievance. The agency found that complainant had been absent
without authorized leave (AWOL) from her regular work assignment and
her access badge was deactivated by a management official.
The Commission has held that a complainant should not use the EEO
complaint process to raise a matter more appropriately brought pursuant to
the collective bargaining agreement. See Wills v. Department of Defense,
EEOC Request No. 05970596 (July 30, 1998). We find that complainant's
complaint concerns complainant's authorization under the agency's
collective bargaining agreement to conduct union business at the agency's
facility and therefore fails to state a claim. Accordingly, we find the
complaint is properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, we hereby modify the agency's final decision and we dismiss
the complaint for failure to state a claim. The agency's decision,
as modified, 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
December 9, 2003
__________________
Date