0120092045
08-07-2009
Eileen M. Castillo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eileen M. Castillo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092045
Agency No. 4G-752-0054-09
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 6, 2009, dismissing her formal 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.
In a formal complaint dated February 18, 2009, complainant, a Full Time
City Carrier at the agency's Grand Prairie, Texas Post Office alleged
that she was subjected to discrimination on the bases of national origin,
sex and age when:
1. She was denied a full back pay award as stipulated in a arbitration
decision dated June 13, 2008;
2. She was not permitted to work from June 13, 2008 through November 19,
2008; and
3. Her removal (originally dated March 15, 2008 and issued May 2, 2008)
that was placed into abeyance on May 23, 2008, was put into effect
November 19, 2008.
On March 6, 2009, the agency issued a final decision. Therein, the
agency dismissed claim 1 in the complaint for failure to state a claim.
The agency found that the proper forum for complainant to raise a
challenge to actions which occurred following an award through the
negotiated grievance procedure is through that forum itself. Complainant
is addressing this issue through her union and the union has already
filed a non-compliance grievance. The Commission has held that an
employee cannot use the EEO complaint process to lodge a collateral
attack on another forum's proceedings. Kleinman v. U.S.Postal Service,
EEOC Request No. 05940585 (September 22, 1994).
The agency dismissed claims 2 and 3 in the complaint stating that
complainant raised identical claims in a prior complaint, identified as
Agency No. 4G-752-0324-08 filed on July 28, 2008. which the agency had
dismissed on the grounds that this prior complaint was untimely filed. The
agency stated that, in claims 2 and 3 of the instant formal complaint,
complainant is attempting to resurrect matters that were previously
raised in the dismissed complaint.
The Commission agrees with the agency's reasoning that claim 1 in the
complaint fails to state a claim under the EEOC regulations because
complainant by filing that claim is attempting to challenge the actions
of another forum and as such failed to show that she suffered harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
With regard to claims 2 and 3, EEOC Regulation 29 C.F.R. � 1614.107 (a)
(1) provides that an agency shall dismiss a complaint that states the
same claim that is pending before or has been decided by the agency
or Commission. The Commission determines that the matters raised in
claims 2 and 3 are elaborations of the matters identified in the above
referenced prior complaint and, therefore, properly dismissed as the
subject of a new complaint.
Therefore, the agency's final decision dismissing complainant's complaint
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
August 7, 2009
__________________
Date
3
0120090191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092045