05970301
05-13-1999
Maggie Oliver, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Maggie Oliver v. United States Postal Service
05970301
May 13, 1999
Maggie Oliver, )
Appellant, )
) Request No. 05970301
v. ) Appeal No. 01954529
) Agency No. 4E-1580-93
William J. Henderson, ) (No. 5A-1112-92)<1>
Postmaster General, ) Hearing No. 380-94-8066X
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On November 27, 1996, Maggie E. Oliver (the appellant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Maggie E. Oliver v. Marvin T. Runyon,
Jr., United States Postal Service, EEOC Appeal No. 01954529 (October
21, 1996). The appellant received the decision on October 28, 1996.
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision. 29 C.F.R. �1614.407(a). A party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following 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 misapplication of established policy,
29 C.F.R. �1614.407(c)(2); the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
The issue herein is whether the previous decision properly addressed
appellant's claim that the agency failed to afford her relief ordered
in its final agency decision dated October 17, 1994.
Appellant filed a formal complaint on May 29, 1993, when she was not
selected for the position of Material Management Specialist in Anchorage,
Alaska. Following an investigation, an EEOC Administrative Judge (AJ)
found that the agency had discriminated against appellant based on
reprisal and ordered relief, including retroactive appointment to the
position effective February 15, 1993, the date the selectee assumed
the position. The agency's final decision dated October 17, 1994,
adopted the AJ's decision (FAD). The agency ordered that appellant
be placed in the position of Material Management Specialist, EAS-15,
at the Anchorage post office effective February 15, 1993.
In February 1995, appellant contacted an EEO counselor with regard to
implementation of the relief and, following the agency's finding that
it had fully complied with its FAD, appellant filed the appeal herein.
Appellant contended that she was not given the job duties and office
of the Material Management Specialist position. The previous decision
ordered the agency to show appellant's assignment to the position
effective February 15, 1993, on all official documentation and to
process appellant's concerns regarding her duties and allocation of
office space as new matters in the EEO process.
Appellant has filed a request for reconsideration, asking that the
Commission decide the merits of her claim regarding her duties and
allocation of office space. The agency has submitted copies of a
settlement agreement and addendum dated May 12 and June 5, 1998 (SAA),
which provides for, inter alia, appellant's transfer to the position
of Postmaster in Ashland, Montana, and resolution of five cases in EEO
hearings and one proceeding before the Merit Systems Protection Board.
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument
or evidence that tends to establish at least one of the criteria of 29
C.F.R. �1614.407(c). Having reviewed the record, we find that appellant's
request fails to meet the criteria of 29 C.F.R. �1614.407(c). Upon our
own motion, however, we reconsider our previous decision to address the
action ordered therein in light of the SAA.
Initially we note that, because the settlement documents submitted by
the agency do not reference the agency case numbers or the Commission's
docket numbers for the instant matter, we do not dismiss appellant's
request herein. Further, we do not find any indication or evidence in
the record that appellant intended to withdraw the instant matter.
Appellant objects to the remand of her claim regarding her duties and
allocation of office space as a new issue and seeks a decision on the
merits. For different reasons, we agree. The Commission's regulations
provide that the Commission retains jurisdiction over remedial aspects
of final agency decisions that have not been the subject of an appeal.
29 C.F.R. �1614.204(a); Jelks v. Department of the Navy, EEOC Request
No. 05910602 (September 11, 1991). Here, the agency ordered that
appellant be placed in the subject position. In our view, appellant's
claims in this situation regarding matters of her job duties and work
space are sufficiently associated with her job assignment that they form
part of her relief and cannot be carved out as new issues. For these
reasons, we hold that these matters should have been addressed in the
previous decision.
Nevertheless, in the interest of judicial economy, we address the impact
of the SAA on appellant's claims regarding job duties and work space.
According to the SAA, upon signing the document, appellant accepted a
transfer to the position of Postmaster, Ashland, Montana. In light of her
removal from the situs of her concern, we find that her claims regarding
job duties and work space have been rendered moot. See County of Los
Angeles v. Davis, 440 U.S. 625 (1979).<2>
After a review of the appellant's request for reconsideration, the
agency's reply thereto, the previous decision, and the entire record,
the Commission finds that the appellant's request fails to meet the
criteria of 29 C.F.R. �1614.407(c), and it is the decision of the
Commission to deny the appellant's request. On its own motion, the
Commission reconsiders the previous decision. The decision in EEOC Appeal
No. 01954529 (October 21, 1996) is MODIFIED. There is no further right
of administrative appeal on a decision of the Commission on a Request for
Reconsideration. The agency is directed to comply with the Order, below.
ORDER
The agency is ORDERED to take the following actions.
(A) The agency shall amend agency records to indicate appellant's
placement in the position of Material Management Specialist, EAS-15,
as of February 5, 1993.
(B) The agency shall submit evidence of its compliance to the Compliance
Officer as referenced below.
IMPLEMENTATION OF 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 APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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:
May 13, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Along with the matter addressed in this decision, appellant had also
complained about the implementation of a settlement agreement (SA)
dated July 29, 1992, resolving Complaint No. 5A-1112-92. With regard to
that matter, our previous decision ordered the agency to determine its
compliance with the SA. On December 8, 1996, the agency issued a final
decision finding that it was in compliance with the SA. Appellant filed
an appeal with regard to that matter, and it is addressed in EEOC Appeal
No. 01983377.
2It does not appear that the SAA abrogated the need to order the agency
to indicate in agency records appellant's placement in the position of
Material Management Specialist, EAS-15, as of February 5, 1993.