0120092933
10-22-2009
Leah D. Vue, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leah D. Vue,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092933
Agency No. 4F-956-0055-09
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 20, 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.
On April 27, 2009, complainant filed the instant formal complaint.
Therein, complainant alleged that she was subjected to discrimination
on the bases of race, national origin, sex, religion, color, and in
reprisal for prior EEO activity when:
on or around February 8, 2009, a Part-Time Flexible (PTF) employee was
converted to a Full-Time Regular (FTR) position in accordance with an
Order from the EEOC's Office of Federal Operations (OFO).
Specifically, complainant asserted that she had more seniority than the
named PTF employee (E1). Therefore, pursuant to the collective bargaining
agreement in effect, she should have been converted to FTR prior to E1.
On May 20, 2009, the agency issued a final decision dismissing the
instant complaint for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1). Specifically, the agency determined that complainant
failed to demonstrate that she suffered harm to a term, condition or
privilege of her employment. The agency found that E1 was converted to
a FTR position based on the settlement of an EEO complaint he filed.1
The agency noted that settlement agreements may not be considered
independent acts of discrimination against others who do not benefit from
the agreement, unless the agreement was executed in bad faith. Here,
the agency concluded that the agreement was not an attempt to bestow
unequal benefits to E1 under the guise of remedying discrimination.
The regulation set forth at 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 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).
Here, complainant is challenging the agency's decision to convert E1
to a FTR position in order to effectuate a settlement agreement of an
EEO complaint. Complainant contends that by converting E1 to a FTR
position, the agency denied complainant an opportunity to be converted,
because she had more seniority than E1. The Commission has previously
held that a claim of discrimination based on another party's settlement
agreement fails to state a claim where there has been no showing that
the agreement was executed in bad faith because processing such claims
would discourage voluntary conciliation of complaint. See Faison
v. Department of the Army, EEOC Request No. 05900956 (October 12,
1990); Snapp v. Department of Defense, EEOC Request No. 0580439 (August
3, 1989). Although complainant argues she should have been converted
to a FTR position because she had more seniority than E1, we find that
she has failed to show that the agreement was executed in bad faith,
i.e., that it is a discriminatory attempt to bestow unequal benefits
to E1 under the guise of remedying discrimination. Moreover, Moreover,
the alleged agency action was not of a type reasonably likely to deter
complainant or others from engaging in protected activity.
The agency's dismissal of the instant complaint for failure to state a
claim was proper and 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
October 22, 2009
__________________
Date
1 In an appeal filed by E1, the EEOC concluded that the agency had
breached the terms of this settlement agreement and ordered the agency
to change his status from part-time flexible clerk to a full-time regular
clerk.
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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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