01985938_r
09-10-1999
Karen L. Elliott, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Karen L. Elliott, )
Appellant, )
)
v. ) Appeal No. 01985938
) Agency No. 1F-937-1022-94
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. �621 et seq. Appellant received the
final agency decision on June 29, 1998. The appeal was postmarked July
29, 1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that it states the same claim as that pending
before or that has been decided by the agency or the Commission.
BACKGROUND
The record reveals that appellant and the agency entered into a settlement
agreement on May 13, 1987. The settlement agreement provided, in
relevant part:
3. [Appellant] agrees to accept an assignment to the Express Mail Section,
Tour II, Saturday and Sunday off with a starting time between 6:00
a.m. and 9:30 a.m. Her duties to include express mail coordination,
transportation, sales, and special delivery processing. The position
will be compensated at the Level 6 rate.
Appellant initiated contact with an EEO Counselor on April 21, 1994.
On June 21, 1994, appellant filed a formal EEO complaint wherein she
alleged that she had been discriminated against on the bases of her race
(Caucasian), color (white), sex (female), age (56), religion (Protestant),
national origin (English/Irish-American), physical disability (torn
tendons in feet, ankles, legs, and loss of hearing), and in reprisal
for her previous EEO activity when effective February 19, 1994, she was
assigned to the Computerized Forwarding System. Appellant claimed that
her immediate supervisor in the Express Mail Section reduced her duties
so that he could eliminate her position. Appellant alleged that her
assignment to the Computerized Forwarding System constituted a breach
of the third provision of the settlement agreement. As relief in part,
appellant requested that the agency honor the settlement agreement and
restore her to her position in the Express Mail Office.
The complaint was accepted for investigation. Upon completion of the
investigation, appellant requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). The investigative
file was forwarded to the Commission's San Francisco District Office to
schedule a hearing. On March 28, 1998, the AJ found that a determination
of whether an agency has complied with a settlement agreement cannot be
made by an EEOC AJ. The AJ concluded that he did not have subject matter
jurisdiction to conduct a hearing on a claim of breach of a settlement
agreement, and a complainant cannot bring such a matter before an AJ by
filing a complaint of discrimination. The AJ remanded the complaint to
the agency and recommended that it be dismissed for lack of jurisdiction.
In its final decision, the agency dismissed appellant's complaint on the
grounds that it states the same claim that is pending before or that has
been decided by the agency. According to the agency, appellant alleged
breach of the settlement agreement and requested reinstatement of her
complaint in Agency No. 5-1094-56. The agency stated that it issued
a final decision in that matter and appellant filed an appeal with
the Commission.
In Karen L. Elliott v. United States Postal Service, EEOC Appeal
No. 01942743 (March 7, 1995), the Commission found that the May 13,
1987 settlement agreement was not breached when appellant's position
in the Express Mail Unit was abolished following the nationwide agency
restructuring. Upon request for reconsideration,
in Karen L. Elliott v. United States Postal Service, EEOC Appeal
No. 05950615 (December 13, 1995), the Commission vacated the previous
decision and remanded the matter for a supplemental investigation as to
whether the agency restructured the position of Express Mail Technician
and reposted the job to reflect actual changes in duties, assignments,
and scheme knowledge. The agency again issued a final decision and on
appeal, the Commission, in Karen L. Elliott v. United States Postal
Service, EEOC Appeal No. 01970474 (August 27, 1997), found that the
agency's elimination of appellant's position was not undertaken in bad
faith, and therefore no breach of the settlement agreement occurred.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
The agency dismissed the instant complaint under this provision on the
grounds that this complaint stated the same claim as that in Agency
No. 5-1094-56. In the previous matter, appellant alleged breach of the
third provision of the settlement agreement when the agency notified
her on November 22, 1993, that her position in the Express Mail Section
was being canceled effective December 22, 1993. We find that the
subject matter of both the instant complaint and Agency No. 5-1094-56
are the same as they concern alleged breaches of the third provision
of the settlement agreement. We find that the abolition of appellant's
position in the Express Mail Unit and her reassignment to the Computerized
Forwarding System are inextricably intertwined since appellant's dispute
appears to focus on her supervisor's reduction in her duties with the
purported purpose of eliminating her position in the Express Mail Unit.
Therefore, we find that the instant complaint states the same claim as
that previously decided by the Commission. Accordingly, the agency's
dismissal of the instant complaint was proper and is AFFIRMED.
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 (S0993)
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. 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:
Sept. 10, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations