01990796
10-21-1999
Karen S. Stone, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Karen S. Stone v. United States Postal Service
01990796
October 21, 1999
Karen S. Stone, )
Appellant, )
) Appeal No. 01990796
v. ) Agency No. 1-D-251-0028-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The appeal is accepted in accordance
with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issues on appeal are whether the agency properly dismissed appellant's
allegation (1) for untimely contact with an EEO Counselor and for
failure to state a claim and allegations (2) and (3) for failure to
state a claim.
BACKGROUND
Appellant filed a formal complaint on September 2, 1998, alleging
discrimination on the bases of race (American Indian) and reprisal when:
(1) on March 9, 1996, appellant was not selected for a Management
Control position because she had no computer skills but on July 27,
1998, appellant learned that another individual who was placed on the
Management Control list had no computer skills;
(2) on an unspecified date, appellant filed an EEO complaint based upon
the incident on March 9, 1996, which the agency refused to accept; and
(3) on an unspecified date, appellant filed a grievance regarding her
non-selection for a maintenance control position in 1996 and an arbitrator
ruled that it was untimely.
In its FAD, the agency dismissed allegation (1) for untimely contact
with an EEO Counselor. The agency found that appellant should have
become aware of the alleged discriminatory act on March 9, 1996, when
she did not get the Management Control position. Since appellant sought
EEO Counseling on July 28, 1998, the agency dismissed the allegation for
failure to contact an EEO Counselor during the 45-day period. The agency
also found that allegation (1) failed to state a claim. It reasoned
that the appellant failed to show that she was harmed by the action and
that she would benefit from the intervention of the Commission. The FAD
dismissed allegations (2) and (3) for failure to state a claim because
it found that appellant did not file any formal complaint as she alleged
in allegation (2) and that appellant was attempting a collateral attack
of the grievance process in allegation (3). This appeal followed.
ANALYSIS AND FINDINGS
Upon review of the record, we find that the agency's FAD improperly
defined allegations (1) and (2). In appellant's complaint, it appears
that allegation (1) pertains to her allegation of discrimination when on
March 9, 1996, she was not given a Management Control position because she
had no computer skills yet she learned that another individual received
the promotion who also lacked computer skills. Appellant asserts that
the reason she failed to file the complaint in 1996 was that the agency
refused to accept it when she attempted to file a complaint. Further,
it appears that in allegation (2), appellant alleges that she was
discriminated when on July 27, 1998, she learned that another employee
who also lacked the same skill as herself was placed on the Maintenance
Control list.
Allegation (1)
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a complaint required by 29 C.F.R. �1614.105(d), (e) or (f).
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in ��1614.105, 1614.106, and
1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
In this case, appellant alleges that she was discriminated against
when appellant learned that she was not given a Maintenance Control
position for she lacked computer skills. Later, on March 9, 1996,
appellant discovered that a co-worker who also lacked computer skills
received the promotion for which appellant had applied. The record
indicates that appellant raised this allegation to an EEO Counselor in
a timely manner. The record also indicates that appellant received a
notice of the right to file a formal discrimination complaint on April
11, 1996. The notice informed appellant that she had fifteen days from
the date of receipt of the notice in which to file a formal complaint.
The record further reflects that appellant did not file a formal complaint
within fifteen days of her receipt of that notice. She alleges that she
attempted to file the complaint but the agency refused to accept it.
The record is insufficient regarding this incident for the Commission
to determine whether appellant had presented adequate justification,
pursuant to 29 C.F.R. �1614.604(c) for extending the filing period.
Therefore, we order that the agency conduct a supplemental investigation
concerning this matter.
Allegations (2) and (3)
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
In allegation (2), appellant alleges discrimination when she learned
that a co-worker who lacked computer skills was placed on the Maintenance
Control list on July 27, 1998. Appellant did not compete to be on this
list and has failed to show how she was harmed by the placement of the
co-worker onto the Maintenance Control list. Therefore, the Commission
finds that appellant's allegation (2) fails to state a claim.
Allegation (3) concerns the dismissal of appellant's grievance by an
arbitrator. An allegation that can be characterized as a collateral
attack, by definition, involves a challenge to another forum's proceeding,
i.e., the grievance process, the EEO process in a separate case, the
unemployment compensation process, the workers' compensation process,
and so forth. While the Commission will examine complaints concerning
the discriminatory implementation of a proceeding, allegations of
discrimination based on the outcome of the process are properly not
reviewed by the Commission. Therefore, where a federal employee is
merely dissatisfied with the resolution of his or her grievance, the
remedy is within the appellate structure of the grievance process itself,
not within the EEO process. Bowie v. United States Postal Service,
EEOC Request No. 05910802 (February 4, 1992).
In allegation (3), appellant alleges discrimination when an arbitrator
ruled that her grievance was filed in an untimely manner. Appellant
merely alleges dissatisfaction with the outcome of the grievance process.
Such an allegation constitutes a collateral attack. Therefore, allegation
(3) fails to state a claim and is dismissed.
CONCLUSION
Accordingly, the agency's dismissal of allegations (2) and (3) is AFFIRMED
and the agency's dismissal of allegation (1) is VACATED and REMANDED for
further processing in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to supplement the record regarding allegation
(1) with any necessary evidence or documentation in order to determine
when appellant attempted to file her complaint regarding the March 9,
1996 incident including affidavits from appellant and persons within
the EEO Office with personal knowledge of the events surrounding the
incident. Based on the foregoing, the agency shall gather any other
evidence necessary to determine whether appellant has presented adequate
justification, pursuant to 29 C.F.R. �1614.604(c), for extending the
filing period. Within thirty (30) days of the date this decision becomes
final, the agency shall issue a new final agency decision dismissing
the complaint and/or a notice of processing.
A copy of the new final agency decision and/or notice of processing on
the complaint must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
Oct. 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations