01A41454_r
04-23-2004
Diana L. Flores, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Diana L. Flores v. United States Postal Service
01A41454
April 23, 2004
.
Diana L. Flores,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41454
Agency No. 1-F-895-0013-03
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated December 5, 2003, dismissing her complaint of
unlawful employment discrimination brought pursuant to Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. , Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant contacted an EEO Counselor on September 8, 2003, concerning
her February 17, 2001 disciplinary removal from employment, based on her
assault of a female co-worker. Complainant claimed that on September 8,
2003 she learned from current postal employees that two male workers had
engaged in a physical altercation, but were not disciplined with removal.
On November 19, 2003, complainant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on the bases
of sex, disability, and age concerning her February 17, 2001 removal,
and the agency's subsequent refusal to rehire her.
In its final decision, the agency dismissed the complaint on the grounds
of untimely EEO Counselor contact. Alternatively, the agency found
that the instant complaint must also be dismissed on the grounds that
it concerns the same matter raised in a previous complaint, identified
as Complaint No. 1-E-895-0006-01, which was resolved by a March 14,
2001 settlement agreement. Additionally, the agency found that since
complainant was no longer an employee of the agency, because of her
resignation under the terms of the March 14, 2001 settlement agreement,
she had no standing to bring the instant complaint.
On appeal, complaint admits to filing Complaint No. 1-E-895-0006-01, and
entering into the settlement agreement. However, complainant argues that
the terms of the settlement agreement also include a provision requiring
the agency to rehire her after she completed a counseling program, which
it failed to do. Complainant avers that she filed a union grievance in
April 2001, regarding the agency's failure to abide by the settlement,
and that the matter was taken up by the union. Complainant submits
a copy of a January 7, 2004 union arbitration decision, finding that
it breached the EEO settlement agreement, and ordering the agency to
immediately reinstate complainant to her former position, with back
pay and benefits. Additionally, complainant requests the Commission
to process the current complaint as valid and timely; to address the
breach of the settlement agreement; and to assign this entire matter to
an EEOC Administrative Judge for a hearing.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
The Commission determines that complainant's removal, and the agency's
subsequent failure to rehire her, are both matters covered by her
prior complaint, Complaint No. 1-E-895-0006-01, and the March 14, 2001
settlement agreement which resolved it.<1>
In the event of breach, the remedy is either specific performance
or reinstatement of the underlying complaint, not the filing of a
new complaint based on the same matter. See 29 C.F.R. � 1614.504.
We advise complainant, that under normal circumstances, to file a breach
claim, she must notify the EEO Director in writing, within thirty days
of the breach. See 29 C.F.R. � 1614.504. However, in this case, to
the extent that complainant raises a breach claim on appeal, it appears
that the union took jurisdiction of the breach claim, and rendered an
adjudication in favor of complainant, in the January 7, 2004 arbitration
decision referenced above.
Accordingly, for the reasons set forth above, we AFFIRM the agency's
dismissal of the instant complaint.<2>
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 23, 2004
__________________
Date
1We note that neither a copy of this prior
complaint or the settlement agreement is of record. However, based on
record statements, both parties admit that these documents exist and that
the complaint concerned complainant's removal and that the settlement
agreement specified the conditions of her re-hiring.
2Because we are affirming the agency's dismissal on the grounds that
the complaint raises the same matter raised in her prior complaint
and settlement agreement, we will not address the agency's alternative
grounds for dismissal.