0120061516
06-06-2007
Adrienne M. Guidry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Adrienne M. Guidry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200615161
Agency No. 4J-606-0124-04
Hearing No. 210-2005-00130X
DECISION
Upon review, the Commission finds that the agency's final action properly
dismissed complainant's complaint for failure to state a claim, pursuant
to 29 C.F.R. � 1614.107(a)(1). In her complaint, complainant alleged
that she was discriminated against based on her disability (head injuries)
when: (1) she was informed on December 26, 2003, that her position would
be excessed; and (2) she was denied reassignment back to a letter carrier
craft position on December 26, 2003.
The record indicates that the agency investigated the complaint and
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On November 18, 2005, the AJ issued her decision dismissing the complaint
for failure to state a claim. On November 23, 2005, the agency issued
its final action implementing the AJ's decision.
Upon review, the Commission finds that the agency properly dismissed claim
(1) since it merely involved a potential excessing notice and complainant
has not actually been excessed from her position. Complainant does not
dispute this on appeal.
With regard to claim (2), the AJ found, and the Commission agrees,
that complainant was actually making a collateral attack on her
non-reassignment pursuant to a national settlement ("NMOU") between the
National Association of Letter Carriers ("NALC") and the Postal Service,
pursuant to the arbitrator's decision ("Snow Award"). Such a collateral
attack on the implementation of an arbitrator's decision fails to state
a claim. We note that complainant is not claiming that she was being
forced to work beyond her medical restrictions in the position she held
on December 26, 2003.
Accordingly, the agency's decision dismissing the complaint is AFFIRMED.
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
June 6, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120061516
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036