01A23049_r
08-06-2002
Akilah Mills, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Akilah Mills v. United States Postal Service
01A23049
August 6, 2002
.
Akilah Mills,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23049
Agency No. 1F-941-0021-01
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 2, 2001, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
On September 13, 1999, complainant entered into a settlement agreement
with the agency and the union where, among other provisions, complainant
agreed, �never to exercise her collective bargaining agreement right,
if such right exists, to bid for positions that entrust her with postal
funds such as cash or stamp stock, including but not limited to the
position of window clerk. Appellant hereby waives such rights, if such
rights exist.� On January 23, 2001, complainant filed an EEO complaint in
which she claimed that she was discriminated against on the bases of race
(Black), sex (female), and disability (chemical imbalance) when, on July
19, 2000, complainant was the senior bidder for Job Bid #8133987, a Bulk
Mail Clerk position, which she was not awarded due to the pre-existing
last chance settlement agreement negotiated by complainant, the union,
and the agency. The agency dismissed complainant's complaint for failure
to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).<1>
Upon review, the Commission finds that complainant's claim that she was
not awarded the Bulk Mail Clerk Position constitutes a collateral attack
on her settlement agreement. The proper forum for complainant to have
raised her claim was within the negotiated grievance process itself.
Since the claim is a collateral attack on the outcome of another
administrative dispute resolution process, it fails to state a claim.
See 29 C.F.R. � 1614.107(a)(1). Accordingly, the agency's decision
dismissing complainant's 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
August 6, 2002
__________________
Date
1Since we are affirming the agency's dismissal
of complainant's complaint on the ground of failure to state a claim,
we will not address the agency's alternative ground for dismissal, i.e.,
untimely EEO Counselor contact.