0120113442
10-21-2011
Darlene Archibeque, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Darlene Archibeque,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120113442
Agency No. 1G-871-0004-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 29, 2011, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Window Clerk at the Agency's Albuquerque Processing & Distribution Center facility in Albuquerque, New Mexico.
The record reflects that a settlement agreement dated December 10, 2002, indicates that Complainant and the Agency agreed that the Agency would "not move the complainant to either the plant or the ASF for a period of ten years from the signing of this agreement."
On April 11, 2011, Complainant filed a formal complaint. Therein, Complainant claimed that she was the victim of unlawful employment discrimination on the bases of race, sex, age, and in reprisal for prior protected activity when:
On January 5, 2010, management gave Complainant a direct order, under threat of discipline.
A fair reading of the informal complaint, the EEO Counselor's Report, and Complainant's formal complaint shows that Complainant claims that the direct order referenced above would have resulted in Complainant's reassignment to a different position; and that the reassignment would have violated the December 10, 2002 settlement agreement. Specifically, the Commission notes that in the formal complaint, Complainant expressly claims that she was given a direct order ". . . to violate my Previous EEOC Settlement."
In the instant final decision, the Agency dismissed the formal complaint on the grounds that it alleges dissatisfaction with the Agency's processing of a previous complaint. The Agency stated that because Complainant is in essence alleging a settlement breach, the Agency referred the matter to the appropriate individual to be processed in accordance with 29 C.F.R. � 1614.504.
ANALYSIS AND FINDINGS
The Commission initially determines that although the instant formal complaint was proper dismissed, the dismissal will not be considered in terms of whether it alleges dissatisfaction with a matter raised in a prior complaint. Rather where as here, a complainant alleges the Agency breached a settlement agreement, the proper course is to notify the Agency's EEO director of the alleged breach. 29 C.F.R. � 1614.504(a). The Agency acknowledges in its final decision that the subject matter is indeed being processed as a breach claim. While we affirm the Agency's dismissal of the instant complaint, we are nevertheless remanding this matter to the Agency in accordance with the Order below, simply to ensure that the breach claim is properly processed pursuant to Section 1614.504.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. However, the breach claim is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
a. The Agency is ordered to refer Complainant's breach claims relating to a December 10, 2002 settlement agreement, to the Agency's EEO Director for further processing in accordance with 29 C.F.R. � 1614.504. Within forty-five (45) calendar days from the date that this decision becomes final, the Agency shall issue a determination as to whether the Agency breached the December 10, 2002 settlement agreement. The Agency shall provide Complainant with appeal rights to the Commission.
b. A copy of the Agency's determination regarding compliance with the December 10, 2002 settlement agreement must be sent to the Compliance Officer referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant 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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 21, 2011
__________________
Date
2
0120113442
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013