01A31600_r
04-29-2004
Deonne B. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deonne B. Jones v. United States Postal Service
01A31600
April 29, 2004
.
Deonne B. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31600
Agency No. 1-G-701-0126-02
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated January 13, 2003, pertaining to her complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. The Commission accepts the appeal in accordance
with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office alleging that she was the victim
of unlawful employment discrimination on the bases of disability
and in reprisal for prior protected activity. Informal efforts to
resolve complainant's concerns were unsuccessful. On October 16, 2002,
complainant filed the instant formal complaint.
In its final decision dated January 13, 2003, the agency determined that
the instant complaint was comprised of the following claim:
Since filing a sexual harassment complaint in September 1993, and a civil
action in 1998, management has continued to harass complainant by not
working her within her medical restrictions; calling her AWOL unjustly;
assigning duties outside of her medical restrictions; and not giving
her full-time work.
The agency dismissed complainant's formal complaint on the grounds that it
states the same claims that have been decided by the agency. The agency
found that complainant previously filed EEO complaints concerning
AWOL charges and agency management's refusal to acknowledge her
physician's orders, citing Case Nos. 1-G-701-0039-02; 1-G-701-0116-00;
1-G-701-0007-00; and 1-G-701-0089-00. The agency also noted that
complainant alleged that the agency's continued harassment of her
constituted breach of a September 22, 1998 settlement agreement.
The agency determined that the September 1998 settlement agreement
settled a civil action; that the proper venue in which to lodge a breach
claim was with the District Court; and that the agency therefore lacks
jurisdiction to enforce a �civil action settlement agreement.�
On appeal, complainant argues that "the issue of not being given
full-time work has not been alleged in any prior complaint." Further,
complainant contends that the EEO complaints cited by the agency were
filed between September 1999 and November 2001, but that the instant
complaint concerns events occurring after November 2001.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
The Commission notes that while the agency cites four prior EEO
complaint in its final decision, it only provides documentation
regarding Case No. 1-G-701-0039-02. A review of the record shows
that Case No. 1-G-701-0039-02 concerned unscheduled absences and
management's refusal to acknowledge the orders of complainant's physician.
These events purportedly occurred between August 2001 and November 2001.
We determine that a fair reading of the instant complaint includes new
claims of harassment. The Commission acknowledges that the EEO complaint
form cites "9/92 - 6/17/02" as the dates of alleged harassment; however,
we note that complainant states on appeal that the instant complaint
concerns events that occurred after November 2001.
Finally, with respect to the alleged breach of a September 22, 1998
settlement agreement, the record shows that the agreement was reached to
resolve a civil action filed by complainant in the U.S. District Court
Eastern District of Louisiana. Therefore, we agree with the agency,
that any breach claim concerning the September 22, 1998 agreement is
properly pursued with the District Court in Louisiana.
Accordingly, the agency's decision is modified. Complainant's complaint
regarding the alleged harassment of not working her within her medical
restrictions; calling her AWOL; assigning duties outside her medical
restrictions; and not giving her full-time work is REMANDED to the
agency for further processing in accordance with this decision and the
Order below. The dismissal of the allegations of breach regarding the
civil action settlement agreement is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 29, 2004
__________________
Date