01a50151
04-13-2005
Pamela D. Perkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Pamela D. Perkins v. United States Postal Service
01A50151
April 13, 2005
.
Pamela D. Perkins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A50151
Agency No. 1F-904-0048-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 3, 2004, dismissing 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race (African-American) and her sex when:
On May 26, 2004, personnel violated a May 31, 2001, grievance settlement
agreement stating that the complainant could hold her bid until she
vacated it. Personnel forced her to bid by threatening to make her an
unassigned regular.
In its final decision, the agency dismissed complainant's complaint
for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
Specifically, the agency determined that complainant's claim was an issue
concerning violation of a grievance settlement agreement, and that is a
matter which should be properly before the grievance/arbitration process
as referenced in the Agreement between the agency and American Postal
Workers Union, Article 15, Grievance-Arbitration Procedure. Accordingly,
the agency concluded that the Commission has no jurisdiction.
The record contains a copy of a grievance settlement agreement dated May
31, 2001. The agreement states that effective June 6, 2001, complainant
�will be assigned to an Incumbent Only position of Sack Sorting Machine
Operator.� The agreement further states that once complainant vacates
her bid, it will automatically be reverted.
The Commission has held that a complainant may not use the EEO process
to obtain compliance with a grievance settlement. Quezada v. United
States Postal Service, EEOC Request No. 05930175 (August 12, 1993).
In this case, the Commission finds that complainant is attempting to
use the EEO process to obtain compliance with a grievance settlement
agreement. Such a claim is outside the purview of the EEO process.
Therefore, we find that the agency properly dismissed the complaint
for failure to state a claim. Roseman v. Department of the Treasury,
EEOC Appeal No. 01954382 (May 30, 1996).
Accordingly, the Commission AFFIRMS the agency's dismissal of
complainant's complaint.
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
April 13, 2005
__________________
Date