01976262
10-27-1998
Rosina A. Vacchiano, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rosina A. Vacchiano v. United States Postal Service
01976262
October 27, 1998
Rosina A. Vacchiano, )
Appellant, )
)
v. ) Appeal No. 01976262
) Agency No. 1-C-451-0143-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated July
15, 1997 dismissing appellant's complaint (consisting of allegations 1
and 2) for stating the same claim as previously raised by appellant in
1-C-451-1178-96 and for untimely EEO Counselor contact. The Commission
finds that allegation 1, concerning the improper processing of a prior
EEO complaint, is properly dismissed for failing to state a claim
pursuant to 29 C.F.R. �1614.107(a). To the extent that allegation 1
is a collateral attack on the agency's decision in a prior complaint,
we find that we shall not entertain such a collateral attack. To the
extent that allegation 1 simply concerns improper processing of a prior
complaint, we find that appellant should have raised such concerns during
the processing of that prior complaint. Because of our disposition we
need not address the agency's reasons for dismissing allegation 1.
Allegation 2 is an allegation that the agency breached a settlement
agreement entered into on August 30, 1991. The Commission finds that a
letter dated December 30, 1996 defining the allegations in 1-C-451-1178-96
which were accepted for investigation does not show that any breach
allegation was being considered or dismissed. Even if the breach
allegation arose from the same set of facts at issue in 1-C-451-1178-96
as the agency claims, the breach of settlement allegation should be
processed separately pursuant to �1614.504. Therefore, we find that
the agency improperly dismissed allegation 2 for stating the same claim
as previously raised by appellant in 1-C-451-1178-96. The Commission
also finds that a breach allegation can not be dismissed for untimely
EEO Counselor contact under �1614.107(b). Timeliness of the breach
allegation should be decided pursuant to �1614.504(a). The Commission
does not consider in this decision whether the breach allegation was
timely raised. The Commission remands allegation 2 so that the agency
may process the matter as a breach of settlement allegation pursuant to
�1614.504.
The agency's decision dismissing allegation 1 is AFFIRMED. The agency's
decision dismissing allegation 2 is REVERSED and we REMAND allegation
2 to the agency for further processing in accordance with this decision
and applicable regulations.
ORDER
The agency shall process allegation 2 as a breach of settlement
allegation pursuant to 29 C.F.R. �1614.504. Within 30 days of the
date this decision becomes final the agency shall issue a decision
as to whether it breached the August 30, 1991 settlement agreement as
alleged by appellant. A copy of the agency's decision must be sent to
the Compliance Officer as referenced herein.
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 RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (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:
October 27, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations