Tara L. Chestnut, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 31, 2005
01a52423 (E.E.O.C. Mar. 31, 2005)

01a52423

03-31-2005

Tara L. Chestnut, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Tara L. Chestnut v. United States Postal Service

01A52423

03-31-05

.

Tara L. Chestnut,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A52423

Agency No. 1H-331-0038-03

Hearing No. 150-2004-00072x

DECISION

Tara L. Chestnut (complainant) filed an appeal from the September 8,

2004, final decision of the United States Postal Service (agency),

which agreed to implement the summary decision of the Administrative

Judge (AJ) finding that the complaint failed to state a claim.<1> The

appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted in

accordance with 29 C.F.R. � 1614.405.

Complainant claimed discrimination based on race (black)/national origin

and sex when she was not converted to a full-time position on November

30, 2002. In March 2001, following restructuring, 87 full-time residual

vacancies remained at the agency's Miami facility, and, at that time, 86

part-time flexible (PTF) employees applied for conversion to full-time

flexible (FTF) positions. The agency did not immediately fill these

positions, and the union filed a grievance. An arbitrator found that

the agency had violated the collective bargaining agreement but returned

the matter to the parties for settlement. The resulting settlement

agreement on November 15, 2002, identified the specific PTF employees to

be converted to FTF. Complainant, a PTF, was senior to at least one of

the converted employees but was not converted. Complainant sought EEO

counseling and filed the instant complaint.

In his decision, the AJ found that the complaint was an attack on a

resolution in another forum and that complainant may not use the EEO

process to collaterally attack that settlement agreement. The AJ also

noted that the union, in a letter dated November 26, 2002, acknowledged

that it was aware that PTFs were converted to FTFs out of seniority

order and explained that not all PTFs had sought conversion to FTF when

the residual vacancies became available.

In an appeal statement, complainant contended that the November 15, 2002,

agreement was an "unlawful employment practice" and responsibility for

non-discrimination lay with the agency. Also, in documents contained in

the record, suggestions of favoritism, preferences for certain protected

classes, and other improper selection methods were alleged to have been

used to identify the employees to be converted. The agency argued that

the EEO complaint was a collateral attack on the agreement, that the

union designated the employees to be converted, and that complainant

could not establish a prima facie case, since employees of all protected

bases were converted.

The Commission has held that an employee cannot use the EEO complaint

process to lodge a collateral attack on another proceeding. Hannon

v. Department of the Treasury, EEOC Request No. 05A01149 (May 8, 2003);

see Wills v. Department of Defense, EEOC Request No. 05970596 (July 30,

1998). We find that the instant complaint is just such a collateral

attack on a resolution in the grievance process. As noted by the AJ,

remedy for an action or decision in another forum must be addressed in

that forum. We find that the complaint was properly dismissed by the

AJ for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED, as

modified.

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

_____03-31-05_____________

Date

1The agency also stated that the AJ found no discrimination; in fact,

the AJ dismissed the complaint. Since the complaint was dismissed prior

to consideration on its merits, it is not correct to state that the AJ

made a decision on the merits of the complaint.