Frances A. Russell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 10, 2000
01A21820_r (E.E.O.C. Jul. 10, 2000)

01A21820_r

07-10-2000

Frances A. Russell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Frances A. Russell v. United States Postal Service

01A21820

July 10, 2002

.

Frances A. Russell,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A21820

Agency No. 4-C-442-0013-02

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision pertaining to 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. The Commission accepts the appeal in accordance

with 29 C.F.R. � 1614.405.

Complainant contacted the EEO office claiming that she was discriminated

against when a co-worker, who physically and verbally assaulted another

employee and verbally assaulted her, was returned to the Postal Service

as the result of an Arbitration Decision issued on October 4, 2001.

Informal efforts to resolve complainant's concerns were unsuccessful.

Subsequently, on October 31, 2001, complainant filed a formal complaint

based on sex, age, and disability.

On January 23, 2002, the agency issued a decision dismissing the complaint

for failure to state a claim. Specifically, the agency determined

that because the complaint concerned complainant's dissatisfaction

with the reinstatement of a co-worker, it was a collateral attack

on an arbitrator's decision. The agency found that complainant's

concerns could only be remedied through the grievance process, and not

through the EEO process. Additionally, the complaint was dismissed for

untimely counselor contact. The agency reasoned that on February 16,

2000, complainant's spouse got into an altercation with the co-worker.

The co-worker was initially issued a Notice of Removal, but on October 4,

2001, an arbitrator decided to return the employee to duty. According to

the agency, the allegedly discriminatory incident occurred in February

2000, and complainant did not contact the EEO Counselor until October 19,

2001, approximately twenty months later.

On appeal, complainant argues that she became aware on October 9, 2001

that the co-worker was to be reinstated, and therefore her October

19, 2001 contact was timely. Further, she contends that the alleged

actions violated an April 5, 2000 settlement agreement. The agreement

purportedly required the agency to terminate the co-worker's employment.

Complainant asserts that the Postmaster decided to give the employee

another chance, even before the arbitrator made his final decision,

in violation of the agreement. Finally, complainant states that the

agency failed to take action when the co-worker made �deliberate and

repeated unsolicited remarks with a sexual connotation . . .�, which

she believes created a hostile work environment.

In response, the agency maintains that the complaint fails to state

a claim. Moreover, the agency notes that complainant continues to

assert her dissatisfaction with the arbitration decision, which cannot

be remedied through the EEO process.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

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 his challenges to actions which occurred

during the arbitration proceeding was at that proceeding itself. It is

inappropriate to now attempt to use the EEO process to collaterally

attack actions which occurred during the arbitration process.

As an initial matter, we note that on appeal complainant contends the

alleged agency action also violates an April 5, 2000 settlement agreement.

Commission records indicate that complainant filed a separate allegation

of breach, which was the subject of a separate agency decision issued

on February 20, 2002. The breach matter is currently pending on appeal

, identified as Appeal No. 01A22358, and therefore, the settlement

agreement issue will not be addressed in the instant decision.

Complainant contends that she was discriminated against when she learned

that a co-worker, that had verbally attacked her, was returned to the

agency. Complainant notes that in a decision issued on October 4, 2001,

an arbitrator decided that the removal action taken against the co-worker

was too severe and returned the employee to duty. 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 occurred during the arbitration

proceeding was at that proceeding itself. It is inappropriate to now

attempt to use the EEO process to collaterally attack actions which

occurred during the arbitration process.

Because of our disposition, the Commission will not consider whether

the complaint was properly dismissed on other grounds.

Accordingly, the agency's decision to dismiss the complaint for failure

to state a claim was proper and is hereby 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

July 10, 2000

__________________

Date