0120162425
10-04-2016
Maxima S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Maxima S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120162425
Agency No. 4J481010316
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 16, 2016, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Mail Carrier at the Agency's Post Office facility in Plymouth, Michigan.
On June 1, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of age (58) when, on March 25, 2016, her route remained unchanged after a rural route count was completed. Accordingly to Complainant, this was due to a February 3, 2002 arbitration award that caused the most favorable routes to be the least favorable. She stated that when this occurred in 2002, the most senior carriers (herself included) were denied the right to rebid the routes to get one of the routes that had become more favorable. Complainant alleged that this impacted her compensation and access to overtime. She claimed that the continuing effect of the arbitration award is having a disparate impact on older rural carriers because they had the most seniority at the time of the 2002 arbitration. 2
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, concluding Complainant was lodging a collateral attack on a decision made in the negotiated grievance process.
The instant appeal followed.
ANALYSIS AND FINDINGS
We concur with the Agency that the essence of Complainant's claim concerns the ongoing effects of the 2002 arbitration decision. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on the adjudicatory decision of 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). In her complaint, Complainant alleged the route count resulted in no change to her route because the Agency's actions were governed by the arbitration decision. The EEO process is not the proper forum for Complainant to have raised this challenge. Rather, it must be raised through the collective bargaining process. Complainant indicates that she attempted to file a grievance on this matter, but the grievance was refused because of a June 2015 settlement of a grievance of the same issue. While Complainant claims the grievance process is not available to her, this is not an issue that can be decided in the EEO complaint process.
Accordingly, the Agency's dismissal decision is AFFIRMED.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 4, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant filed an earlier EEO complaint in 2015, concerning the same issue, which was dismissed as untimely raised. That dismissal was affirmed by this Commission. EEOC Appeal No. 0120160627 (February 25, 2015).
3 Complainant alleges that the Agency did not dismiss an EEO complaint (identified as Agency No. 4J-481-0128-15) from another coworker that alleged the same issue. This Commission's appellate program has no record of this other matter and the record contains no evidence of it to verify that the issue raised was identical to the one raised by Complainant.
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0120162425