0120090194
02-04-2009
Roberta Buligan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Roberta Buligan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090194
Agency No. 1F904002508
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated September 8, 2008, dismissing 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds
that complainant's complaint was improperly dismissed.
A fair reading of complainant's original complaint and related EEO
counseling materials reveals that she is claiming that she was subjected
to discrimination on the bases of sex, disability and age (67) when, in
August 2002, her pay grade was reduced from Level 5 to Level 4 when she
was placed in a rehabilitation position as a Data Conversion Operator
following an on-the-job injury. This complaint was settled between
complainant and the agency with a written agreement, dated January 31,
2008, in which the agency promised to place complainant at the Level 5
pay grade and provide her with the pay difference between Level 4 and
Level 5 for the period between 2004 and 2008.
However, complainant later alleged that the agency failed to comply with
the terms of the settlement agreement. This breach allegation eventually
came before this Commission on appeal. In Buligan v. United States Postal
Service, EEOC Appeal No. 0120082266 (July 31, 2008), the Commission found
that the agency was, in fact, in breach of the settlement agreement.
EEOC Appeal No. 0120082266 reflects that the agency stated that because
of a 2004 grievance decision it could not implement the EEO settlement
agreement. As a result, the Commission ordered the agency to reinstate
the underlying EEO complaint (which is the one at issue herein) for
further processing. However, once the agency reinstated the complaint,
it issued the decision now at issue, dismissing the complaint.
The agency identified the issue in the complaint as being "when
complainant was not reverted to her original pay grade in violation of
a Step 3 arbitration decision" and dismissed the matter as a collateral
attack on the grievance process. Therefore, the agency dismissed the
complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state
a claim. The instant appeal followed.
The Commission acknowledges that complainant has referenced a 2004
arbitration decision in her complaint materials, but its connection to the
issue raised in her complaint-the 2002 pay reduction-is not clear from the
record. More importantly, the agency, in its dismissal decision and on
appeal, has failed to explain the connection between the 2004 arbitration
and the underlying issue raised in complainant's EEO complaint. No copy
of the arbitration decision is contained in the record. No statements
are provided by management witnesses explaining the relevance of the
arbitration Significantly, the agency has provided no explanation for
why it entered into an EEO settlement agreement with complainant in 2008
if the matter had already been settled by the arbitration in 2004.
In Ericson v. Department of the Army, EEOC Request No. 05920623 (January
14, 1993), the Commission stated that "the agency has the burden
of providing evidence and/or proof to support its final decisions."
See also Gens v. Department of Defense, EEOC Request No. 05910837 (January
31, 1992). In light of the fact that the agency has not provided any
evidence explaining the connection between the 2004 arbitration and
the instant EEO complaint, and because the agency entered into an EEO
settlement agreement of this complaint in 2008, which it has already
been found to have breached, we are reversing the agency's procedural
dismissal1 and remanding the complaint again for further processing in
accordance with the following Order.
ORDER
The agency is ordered to process the remanded claim (that complainant was
subjected to discrimination on the bases of sex, disability and age (67)
when, in August 2002, her pay grade was reduced from Level 5 to Level
4 when she was placed in a rehabilitation position as a Data Conversion
Operator following an on-the-job injury) in accordance with 29 C.F.R. �
1614.108 et seq. 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 (K1208)
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 (M1208)
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 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 (R0408)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1008)
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
February 4, 2009
__________________
Date
1 Because of the many unanswered questions in this case due to the lack
of information provided in the record, we are also decline to affirm
the agency's dismissal on timeliness grounds.
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0120090194
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090194