05970383
10-08-1998
Virginia Y. Morata, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency,
Virginia Y. Morata v. United States Postal Service
05970383
October 8, 1998
Virginia Y. Morata, )
Appellant, )
)
v. ) Request No. 05970383
) Appeal No. 01961080
William J. Henderson, ) Agency No. 4F-940-1160-95
Postmaster General, )
United States Postal Service, )
Agency, )
)
DECISION ON REQUEST FOR RECONSIDERATION
On January 15, 1997, the agency timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Virginia
Y. Morata v. Marvin T. Runyon, Jr., Postmaster General, United States
Postal Service, EEOC Appeal No. 01961080 (December 10, 1996), received
by the agency on December 16, 1996. EEOC regulations provide that the
Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence that tends to establish one or more
of the three criteria prescribed by 29 C.F.R. �1614.407(c): that new and
material evidence was available that was not available when the previous
decision was issued, 29 C.F.R. � 1614.407(c)(1); that the previous
decision involved an erroneous interpretation of law or regulation, or
material fact, or a misapplication of established policy, 29 C.F.R. �
1614.407(c)(2); or that the decision is of such exceptional nature as
to have substantial precedential effects, 29 C.F.R. � 1614.407(c)(3).
For the reasons stated below, the Commission GRANTS the agency's
request.
Appellant filed a complaint in which she set forth three allegations of
reprisal, as follows:
1. Her supervisor gave her a discussion about counting stamp stock;
2. Another supervisor threatened her at a meeting concerning her stamp
stock; and
3. The agency breached a 1982 settlement agreement.<1>
The agency dismissed allegations (1) and (2) for failure to state a claim.
It also noted that allegation (3) was being investigated in EEO Case
No. 4F-940-1243-94.
The previous decision ordered the agency to process allegations (1)
and (2) after finding that they concerned acts of harassment. Regarding
allegation (3), the previous decision was unable to determine whether
the agency was properly processing the breach-of-settlement claim,
and accordingly, ordered the agency to issue a written determination of
whether there had been a breach.
In its request for reconsideration, the agency argued that it was
processing the breach allegation pursuant to the Commission's order
in Morata v. United States Postal Service, EEOC Appeal No. 01952320
(July 17, 1995)(Morata I). In that decision, the Commission ordered the
agency to process appellant's allegation concerning the breach of the
1982 settlement agreement. In Morata v. United States Postal Service,
EEOC Appeal No. 01965697 (May 21, 1997) (Morata II), the Commission
set forth the provisions of the 1982 settlement agreement in precise
detail and concluded, after extensive examination of the record, that
the settlement agreement had not been breached.<2> Appellant did not
respond to the agency's request for reconsideration.
The agency is required to dismiss a complaint allegation that states a
claim that is already pending before, or has been decided by, the agency
or the Commission. 29 C.F.R. � 1614.107(a). In this case, the record
clearly establishes that appellant's allegation concerning the breach
of the 1982 informal adjustment agreement was pending at the time the
previous decision was issued. Since allegation was already ruled upon
by the Commission in Morata II, we cannot rule upon it here. We also
note that appellant's breach allegation in the instant case is extremely
vague and open-ended, in that she failed to state precisely which terms
of the 1982 agreement the agency violated. Since the agency did not
raise arguments concerning the processing of allegations (1) and (2),
we will not disturb our previous decision's holdings thereon.
After a review of the agency's request to reconsider, the previous
decision, and the entire record, the Commission finds that the agency's
request meets the criteria of 29 C.F.R. �1614.407(c). It is therefore the
decision of the Commission to grant the agency's request. The decision of
the Commission in EEOC Appeal No. 01961080 is REVERSED as to allegation
(3) and AFFIRMED as to allegations (1) and (2). The agency shall
comply with the Commission's order to process allegations (1) and (2),
as modified below. There is no further right of administrative appeal
from a decision of the Commission on request for reconsideration.
ORDER
The agency shall process allegations (1) and (2) in accordance with 29
C.F.R. s 1614.108. The agency shall acknowledge to the appellant that
it has received the remanded allegations (1) and (2) within thirty (30)
calendar days of the date of this decision. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request. A copy of the agency's
letter of acknowledgment to appellant and a copy of the notice that
transmits the investigative file and notice of rights must be sent 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. s
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. ss 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. ss
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. s 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. s 1614.410.
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 8, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant did not identify the settlement agreement at issue, either in
her formal complaint or in her appeal to the Commission. In her written
request for counseling, however, she gave the following response when asked
what type of discrimination she was alleging: "breach of 1982 informal
adjustment agreement of no more reprisal and harassments, now and in the
future."
2Morata II was issued nearly five months after the previous decision in
the instant case was issued.