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