05970-2
03-04-1999
June E. Briand, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
June E. Briand v. United States Postal Service
05970585
March 4, 1999
June E. Briand, )
Appellant, )
)
v. ) Request No. 05970585
) Appeal No. 01962052
William J. Henderson, ) Agency No. 3-A-2265-92
Postmaster General, ) et al.
United States Postal Service, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On March 14, 1997, June E. Briand, (hereinafter referred to as the
appellant) timely initiated a request to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in June E. Briand
v. Marvin T. Runyon, Jr., Postmaster General, United States Postal
Service, EEOC Appeal No. 01962052 (February 27, 1997). EEOC Regulations
provide that the Commissioners may, in their discretion, reconsider any
previous Commission 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 following three 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 a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, appellant's request is denied. However, the Commission
exercises its discretion pursuant to 29 C.F.R. �1614.407(a) to reconsider
the previous decision on its own motion.
ISSUE PRESENTED
Whether the current record before the Commission indicates that the agency
has breached the settlement agreement (SA) entered into on February 15,
1994.
BACKGROUND
The previous decision herein properly stated the pertinent facts and
therefore we reiterate them solely as they are material to our ruling
herein. The relevant provisions of the February 15, 1994 SA are as
follows:
4. Recognizing that the Complainant is unable to perform her duties due
to her physical condition, the U.S. Postal Service fully supports the
following actions:
1) The Postal Service will petition the Office of Worker's Compensation
Programs [OWCP] to have the Complainant placed on the Automatic
Compensation Rolls for [a number of job related injuries];
7) Under public law, the Office of Personnel Management will adjudicate
Complainant's right to permanent disability retirement. It is further
agreed and understood that the U.S. Postal Service will fully support
Complainant's application for disability retirement...
8) It is understood and agreed that no disciplinary action will be taken
against Complainant for filing this or any other complaint against the
Postal Service.
The previous decision affirmed the agency's final decision that it had
complied with provisions 4.7 and 4.8 of the SA. The decision found that
while appellant asserted that the agency was in breach because she did
not receive permanent disability retirement, the SA did not provide for
the agency to do more than support her retirement application and the
record indicated that appellant's application for disability retirement
was approved as of July 19, 1994. The decision further found, with
regard to provision 4.8, that appellant's allegation that she had since
been subjected to alleged retaliatory "disciplinary" actions by the
agency amounted to alleged violations of the SA's "no reprisal" clause
and should therefore be treated as new allegations of discrimination.
Thus, the decision advised appellant to seek EEO counseling on any such
additional allegations of discrimination.
Finally, with regard to the alleged breach of provision 4.1, the previous
decision ordered the agency to conduct a supplemental investigation to
explain in detail why appellant's placement on OWCP's periodic rolls
relieves it of its obligation, under the SA, to petition OWCP to have
appellant placed on the Automatic Rolls for her various work-related
injuries. The agency was further directed to explain the difference
between the Periodic Rolls and the Automatic Rolls, including how
this difference affects appellant's benefits. Appellant requests
reconsideration of this decision. In her request for reconsideration,
appellant again asserts that alleged discriminatory agency actions taken
subsequent to the settlement agreement constitute "disciplinary actions"
in violation of the agreement and asserts that the agency clearly has
failed to comply with SA agreement provision 4.1, since it has not so
petitioned the OWCP as stated in the agreement. Appellant explains
that when she signed the SA, both she and the agency were already aware
that she was on the OWCP's periodic rolls because of that agency's
acceptance of certain of her injuries as job-related. She elaborates
that the agency's petition of OWCP concerning the remaining injuries
cited in the agreement would be important to her efforts to secure an
OWCP finding that such additional injuries were job related and to thus
secure additional OWCP medical cost benefits for such injuries.
Commission records herein also contain appellant's May 5, 1997 appeal
from the agency's final agency decision issued pursuant to the previous
decision's remand order. Appellant has submitted a copy of the FAD and
the accompanying supplemental investigation conducted by the agency. The
agency's supplemental investigation consists of an affidavit secured from
the Senior Injury Compensation Specialist (SICS) involved with the
agency's submissions regarding appellant's OWCP claims. This SICS avers
that the terms "automatic" and "periodic" refer to the same thing: an
automatic payment made to an injured employee every 28 days by OWCP while
they are totally disabled for an accepted condition. She further averred
that the OWCP claims examiner, and not the agency, makes the determination
whether a claimant is placed on the automatic rolls based on medical
documentation it receives. She stated that appellant was placed on the
"daily" rolls and later on the "automatic periodic" rolls by OWCP. She
further noted that a petition by the agency was not made in appellant's
case and that the agency has no jurisdiction over the OWCP's decisions. The
agency's FAD stated the foregoing and asserted that since the agency does
not make the determination of who is placed on the "automatic periodic
rolls" and appellant has been placed thereon by OWCP, the agency did not
violate the SA. In her appeal statement, appellant reiterates the points she
made in her request for reconsideration.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that the
appellant's request for reconsideration fails to meet the criteria of 29
C.F.R. �1614.407(c)(1), in that appellant has not demonstrated that the
documentation she now presents with her request, is new or was previously
unavailable. Nor has appellant shown that the previous decision erred in
any respect, in addressing the arguments and documentation she previously
presented before the Commission. Appellant's argument that alleged
discriminatory actions which occurred after the settlement agreement
was executed constitute either "disciplinary" actions or proper breach
allegations was fully and correctly addressed by the previous decision. It
is therefore the decision of the Commission to deny appellant's request.
Notwithstanding our denial of appellant's request, however, we exercise
our discretion pursuant to 29 C.F.R. 1614.407(a) of our regulations to
reconsider the previous decision based upon our review of the results
of the subject supplemental investigation performed pursuant to the
previous decision's order.<1> This documentation clearly indicates
that the agency has not petitioned the OWCP as promised in provision
4.1 of the SA. Nor does it contain a detailed and adequate explanation
as to why it is relieved of this requirement under the agreement. While
the agency correctly observes that it is the OWCP, and not the agency,
which has the jurisdiction to make determinations relative to placement on
the "automatic periodic rolls," appellant credibly indicates that agency
submissions are considered by OWCP in rendering its determinations, and
that it was her belief that the petition the agency explicitly agreed
to submit would assist her in gaining OWCP medical coverage for the
additional injuries noted in that agreement.<2> Regardless of whether
this ultimately results in a favorable OWCP decision, the agency clearly
and explicitly agreed to submit such a petition to OWCP, in exchange
for appellant's withdrawal of her EEO complaints. The supplemental
investigation ordered by our previous decision unequivocally indicates
that the agency has not complied with this provision of the agreement.
Based on the agency's noncompliance, we will reconsider our previous
decision to order that, at appellant's discretion, the agency either
specifically perform under this provision by petitioning the OWCP as
stated in provision 4.1 or reinstate all of appellant's complaints
resolved by the agreement within 10 days of the date this decision
becomes final.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that 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 this request. The Commission exercises its discretion, however,
pursuant to 29 C.F.R. 1614.407(a) to reconsider the decision on its
own motion. The decision of the Commission in EEOC Appeal No. 01962052
(February 27, 1997) is VACATED in part and the agency's final decision is
REVERSED. The agency is directed to comply with the revised Order of the
Commission set forth below. There is no further right of administrative
appeal from a decision of the Commission on a request to reconsider.
ORDER
The agency is ORDERED to, at appellant's discretion, either specifically
perform under the February 14, 1994 settlement agreement by petitioning
the OWCP as stated in provision 4.1 or reinstate all of appellant's
complaints resolved by the agreement for EEO processing at the point at
which such processing ceased, within 10 days of the date this decision
becomes final.
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. �1614.604(c).
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:
March 4, 1999
___________________ _____________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1In view of our holding herein, we find it unnecessary to docket
appellant's May 5, 1997 letter as a separate appeal. Since this is the
first time that we are addressing the merits of appellant's allegation
that SA provision 4.1 has been breached, we will afford reconsideration
rights on this holding to the parties.
2Appellant's uncontroverted assertion that the agency was aware that she
was already placed on such rolls prior to the execution of the subject
SA based upon a determination that some of the injuries she claimed were
job related, lends credibility to her allegations.