01974345
01-12-1999
Yan Yun Lai, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Yan Yun Lai v. United States Postal Service
01974345
January 12, 1999
Yan Yun Lai, )
Appellant, )
) Appeal No. 01974345
v. ) Agency No. 1-K-222-0017-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On May 7, 1997, appellant filed a timely appeal of an April 4, 1997
final agency decision, received by her on April 17, 1997. The agency
dismissed appellant's complaint on the grounds of mootness.
The agency framed the allegation of the February 24, 1997 complaint as
whether appellant was discriminated against on the bases of race (Asian),
color (yellow), national origin (Chinese), and sex (female) when on
December 7, 1996, she became aware that Employee A's letter of warning
was expunged prior to appellant's letter of warning. In dismissing
the complaint on mootness grounds, the agency noted that appellant was
issued a letter of warning for failure to follow safety regulations on
November 3, 1996. The agency noted that appellant's letter of warning
was rescinded and expunged from all records as a result of a settlement
reached at Step One of the grievance process. The agency further noted
that Employee A was also issued a letter of warning in November 1996,
for failure to follow safety regulations on November 3, 1996, and that
as a result of a Step One grievance decision, Employee A's letter of
warning was reduced to an official discussion and was later rescinded
and expunged from Employee A's records.
The record indicates that appellant was issued a November 9, 1996 letter
of warning which she received on November 13, 1996, for failure to
follow safety regulations on November 3, 1996. The letter of warning
also indicates that the alleged failure caused injury to Employee A.
The record also contains a December 26, 1996 Step One Grievance
Settlement which reveals that appellant and the agency agreed that the
letter of warning was to be rescinded and expunged from all records
and that the letter of warning could not be cited by the agency in any
future disciplinary action. The record also contains a December 29,
1996 Memorandum from appellant's supervisor indicating that effective
December 26, 1996, the letter of warning was removed and would be
rescinded and expunged from all records.
The record further reflects that Employee A was issued a letter of warning
for failure to follow safety instructions on November 3, 1996, and that
Employee A and the agency entered into a Step One Grievance Resolution,
which was executed fully on December 1, 1996, and which reduced Employee
A's letter of warning to an official discussion. The record also contains
a December 29, 1996 Memorandum which indicates that on November 30, 1996,
the letter of warning issued to Employee A was rescinded and expunged
from the agency's records.
Upon review, the Commission finds that the allegation is more
appropriately dismissed for failure to state a claim. EEOC Regulation
29 C.F.R. �1614.107(a) provides that an agency may dismiss a complaint
which fails to state a claim pursuant to 29 C.F.R. �1614.103 or
�1614.106(a). An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that 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;
�1614.106(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).
The Commission has also held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another forum's
proceeding. Kleinman v. U.S. Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. U.S. Postal Service, EEOC Request
No. 05930106 (June 24, 1993). In the case at hand, the proper forum
for appellant to have raised her allegation of dissatisfaction with the
outcome of the grievance process was within the negotiated grievance
process itself. Since the allegation is a collateral attack on the
outcome of another administrative dispute resolution process, the
allegation fails to state a claim. It is inappropriate for appellant
to attempt now to use the EEO process to collaterally attack actions
which occurred during the grievance process. Accordingly, consistent
with our discussion herein, the agency's decision to dismiss appellant's
complaint is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Jan. 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations