0120092728
08-21-2009
Felippa C. Scales, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Felippa C. Scales,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092728
Agency No. 4H-370-0059-09
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 30, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
On April 20, 2009, complainant filed the instant formal complaint.
Therein, complainant claimed that she was subjected to discrimination
on the bases of disability and in reprisal for prior protected activity
when:
the terms of a Step B grievance decision dated March 9, 2009, have not
been fully implemented.
In its April 30, 2009 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a
claim. The agency stated that the instant complaint was an impermissible
collateral attack on the grievance process.
On appeal, complainant contends that it was not her intention to attack
the grievance process through the EEO complaint process. Complainant
further argues that the EEO Counselor "spoke with me nothing was
asked about the retaliation that [led] to my filing this complaint."
Specifically, complainant argues that when she filed the instant
complaint, she was "stating a fact to support her claim of retaliation
and physical and mental discrimination."
In response, the agency restates its argument that the instant complaint
should be dismissed for failure to state a claim. The agency argues
that the PS Form 2564-A, Information for Pre-Complaint Counseling,
states "if you are alleging retaliation discrimination, provide the
date(s) and specifics of the EEO activity that you feel caused you to
be retaliated against." The agency further argues that in her PS Form
2564-A, complainant described the following incident that prompted her
to seek EEO counseling: on March 9, 2009, management and the union agreed
for her to be returned back to work, but that such action was not taken.
The agency states that in the instant complaint, complainant alleged that
"on March 9, 2009, management and the union agreed for me to be returned
back to work with full back pay and lost benefits." The agency argues
that in both the PS Form 2564-A and the instant complaint, complainant
specifically cited March 9, 2009 as the date of the alleged discriminatory
event, the date of the Step B decision, which "reads in part 'the grievant
will be returned to work upon receipt of this decision. The grievance
will be made whole for all lost wages and benefits for the entire period
(including) and since 1/27/09. Management at White Station will (by
3/14/09), process the paperwork to facilitate that payment.'"
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 forum for complainant to have
raised her challenges to actions which involve the grievance proceedings
is within that proceeding itself. It is inappropriate to now attempt
to use the EEO process to collaterally attack actions related to the
grievance process.
The instant formal complaint fails to state a claim under the EEOC
regulations because complainant 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). Finally, the alleged agency
actions were not of a type reasonably likely to deter complainant or
others from engaging in protected activity. Accordingly, 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 21, 2009
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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