01a54819
10-21-2005
Linda Camposano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda Camposano v. United States Postal Service
01A54819
10-21-05
.
Linda Camposano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54819
Agency No. 1G-782-0006-04
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to
state a claim and for untimely EEO Counselor contact in accordance with
29 C.F.R. � 1614.107(a)(2). In her complaint, complainant alleged that
she was subjected to discrimination on the bases of race (Caucasian),
sex (female), and reprisal for prior EEO activity when:
On June 12, 2004, complainant's grievance regarding her removal from
the agency was denied by an arbitrator;
On May 19, 2003 complainant's request for annual leave was denied which
eventually led to her removal from the agency; and
On May 5, 2003 complainant's request for union representation was denied.
The Commission has held that an employee cannot use the EEO process to
lodge a collateral attack on another proceeding. See Willis v. Department
of Defense, EEOC Request No. 05970596 (July 30, 1998). 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. As such,
it is the determination of the Commission that complainant has failed
to state a claim with respect to claim 1 of the instant complaint.
We therefore find the agency's dismissal of claim 1 was proper.
Turning now to claims 2 and 3, EEOC Regulation 29 C.F.R. � 1614.105(a)(1)
requires that complaints of discrimination should be brought to the
attention of the EEO Counselor within forty-five (45) days of the date
of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The record discloses that claims 2 and 3 occurred May 19, 2003 and May 5,
2003 respectively. However, complainant did not initiate contact with
an EEO Counselor regarding claims 2 and 3 until January 12, 2004, which
is well beyond the forty-five (45) day limitation period. On appeal,
complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is hereby AFFIRMED for the reasons set forth herein.
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
_____10-21-05_____________
Date