Diana L. Flores, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 23, 2004
01A41454_r (E.E.O.C. Apr. 23, 2004)

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.