0120121510
06-12-2012
Virtudes Arce, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Virtudes Arce,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 0120121510
Agency No. 4A-006-0005-98
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the December 14, 2011 final Agency determination finding Complainant did not timely file her notice of breach, and in the alternative finding that the Agency was not in breach of a settlement agreement which the parties entered into on May 14, 1999 that closed an administrative equal employment opportunity claim.
BACKGROUND
At the time of events giving rise to her claim of breach Complainant was a Part-Time Regular Mail Processing Clerk whose position was converted effective August 17, 2011 to a Non-Traditional Full-Time Regular job. She worked at the SJU-Bayamon Main Branch in Puerto Rico. With the conversion Complainant's schedule changed from five days a week, six hours a day, as agreed in the referenced settlement agreement to six days a week with 34 hours. Complainant alleged the schedule change breached the 1999 settlement agreement.
By letter dated October 20, 2011, Complainant notified the Agency the new schedule breached the settlement agreement. Meanwhile, on September 19, 2011, she filed a civil action (identified as Civil Action No. 3:11-cv-01922) in the United States District Court for the District of Puerto Rico, which she amended on October 29, 2011, alleging that the Agency breached the above settlement agreement.1 The record further discloses that the claims raised therein are the same as those raised in the instant complaint. The regulation found at 29 C.F.R. � 1614.409 provides that the filing of a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (October 25, 1988).
CONCLUSION
Accordingly, Complainant's appeal is hereby dismissed. 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
June 12, 2012
__________________
Date
1 The civil action is styled "Complaint for Declaratory Judgment & Temporary and Permanent Injunctive Relief." While Complainant wrote in the civil action that it was not a request to enforce the particulars of the settlement agreement (which was misidentified in the initial civil action), she asked that the Court issue a permanent injunction enjoining the Agency from disregarding the settlement agreement regarding work assignment, a reference to scheduling. Complainant also asked that the Agency pay not less than $500,000 in damages for in large part not reasonably accommodating her and discriminating against her when it changed her schedule in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Complainant claimed that the Agency caused her to fail to timely file her notice of breach on the 1999 settlement agreement under 29 C.F.R. � 1614.504 or file a new complaint alleging discrimination, and that the Agency made it futile to engage in any further administrative process. The Court's electronic docket reveals that as of June 7, 2012, the civil action, as amended, is still pending.
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0120121510
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121510