05970536
10-01-1998
John M. Puig, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John M. Puig v. United States Postal Service
05970536
October 1, 1998
John M. Puig, )
Appellant, )
) Request No. 05970536
v. ) Appeal No. 01955873
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On February 27, 1997, John M. Puig (hereinafter referred to as appellant)
initiated a request to the Equal Employment Opportunity Commission
(the Commission) to reconsider the decision in John M. Puig v. Marvin
T. Runyon, Jr., Postmaster General, United States Postal Service,
EEOC Appeal No. 01955873 (January 23, 1997), received by appellant
on January 31, 1997. EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's
request is denied. The Commission, however, reconsiders the matter on
its own motion.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
remanded appellant's allegation that the agency breached a June 1993
settlement agreement by denying him reasonable accommodation for a
supplemental investigation.
BACKGROUND
The previous decision accurately set forth the facts in this case, and,
accordingly, they will be included herein only in pertinent part. The
record in this case reveals that appellant filed a formal EEO complaint
in 1991 alleging that he was discriminated against on the basis of his
disability (ankle condition) when he was denied reasonable accommodation.
Following the issuance of a recommended decision by an Administrative
Judge, appellant and the agency settled the complaint in June 1993.
The settlement agreement provided, in pertinent part, that appellant
would be reinstated with full seniority, receive backpay, have his leave
adjusted, and be provided with reasonable accommodation. By letter dated
July 31, 1995, appellant advised the agency that it had not complied with
the terms of the agreement. In addition to questioning his seniority,
leave, and backpay, appellant indicated that he was not provided with
reasonable accommodation upon his return to work in May 1995.<1>
The previous decision initially found appellant's allegations of breach
to be timely due to the recurring nature of the denial of reasonable
accommodation. Nevertheless, the previous decision found insufficient
evidence in the record to determine whether the agency complied with the
terms of the agreement, specifically, whether appellant was provided with
reasonable accommodation, and whether appellant received the appropriate
seniority, leave, and backpay upon reinstatement. The previous decision
instructed the agency to conduct a supplemental investigation with regard
to those matters.
In his request for reconsideration, appellant raised several arguments as
to the timeliness of his allegations of breach. Specifically, appellant
indicated that he was not advised of his right to appeal the matter
to the Commission. Further, appellant reiterated that he was denied
reasonable accommodation upon his return to work in May 1995.
The agency did not respond to appellant's request for reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. After a careful review of
the record herein, the Commission finds that appellant's request meets
none of the criteria of 29 C.F.R. �1614.407(c). For the reasons stated
below, however, it is the decision of the Commission to reconsider the
previous decision on its own motion pursuant to 29 C.F.R. �1614.407(a).
The Commission initially notes that the previous decision's determination
regarding the timeliness of appellant's breach allegations was proper.
As stated, appellant asserted that he was never advised of his right
to appeal the matter to the Commission. Furthermore, the settlement
agreement is void of any reference to the procedure for raising an
allegation of breach. In addition, the previous decision correctly
found that the record contained insufficient evidence to determine
whether appellant's seniority and leave were properly restored, or
whether appellant received the appropriate amount of backpay.
Nevertheless, the Commission finds that appellant's contention that
he was denied reasonable accommodation in May 1995 constitutes a new
allegation which should have been processed as a separate matter.
Following the execution of the settlement agreement, appellant was
provided with extended leave in 1993 and 1994 to undergo physical
therapy and surgery for his ankle. Appellant did not assert that he
was denied accommodation during that time. Furthermore, the agency is
required to provide appellant with reasonable accommodation pursuant to
the Rehabilitation Act regardless of the inclusion of such a provision
in the settlement agreement. The record reveals that appellant filed
a separate complaint in October 1995 which included the alleged denial
of accommodation upon his return to work.<2> Therefore, the issue will
be properly addressed in connection with that action. Accordingly,
the previous decision's treatment of appellant's allegation that he was
denied reasonable accommodation is hereby modified.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission hereby reconsiders the
previous decision on its own motion pursuant to 29 C.F.R. �1614.407(a).
The decision in EEOC Appeal No. 01955873 (January 23, 1997), as modified
herein, remains the Commission's final decision. The agency shall comply
with the provisions of the Order, as modified below. There is no further
right of administrative appeal on a decision of the Commission on this
Request for Reconsideration.
ORDER
The agency shall conduct a supplemental investigation as to whether it
breached the June 1993 settlement agreement. The agency shall supplement
the record with evidence showing that it complied with the agreement,
specifically, documentation showing: 1. what level of seniority
appellant had been reinstated to; 2. the backpay appellant received;
and 3. how appellant's leave was adjusted. Within sixty (60) calendar
days of the date this decision becomes final the agency shall either
issue a determination that it did not breach the settlement agreement,
specifically enforce the settlement agreement, or reinstate the complaint
for further processing. A copy of the agency's determination that it
complied with the settlement agreement, evidence showing that the agency
specifically enforced the settlement agreement, or a copy of the letter
notifying appellant that it had reinstated the complaint must be sent
to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THAT THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
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:
OCT 1, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant was off of work following his 1993 reinstatement and underwent
surgery for his ankle in 1994. Appellant returned to work on May 30, 1995.
2Appellant's October 1995 complaint is being considered in a separate
decision. EEOC Request No. 05970556.