Babu K. Thomas, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionMay 14, 2010
0120083755 (E.E.O.C. May. 14, 2010)

0120083755

05-14-2010

Babu K. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.


Reference #: 0120083755

Mark Kessinger

PO Box 38707

Houston, TX 77238

Reference #: 0120083755

Babu K. Thomas

2911 Kettle Run

Sugar Land, TX 77479

Reference #: 0120083755

U.S. Postal Service (Southwest)

NEEOISO - Appeals

U.S. Postal Service

PO Box 21979

Tampa, FL 33622-1979

Babu K. Thomas,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120083755

Agency No. 4G-770-0358-06

DECISION

On August 28, 2008, complainant filed an appeal with this Commission

alleging that the agency breached the terms of the May 22, 2008 settlement

agreement into which the parties entered. See 29 C.F.R. � 1614.504.

The settlement agreement provided, in pertinent part, that:

1. Complainant will be given the opportunity to serve as a 204-B

Supervisor for a minimum of 90 days beginning on June 1, 2008 and ending

on December 1, 2008;

2. Complainant will serve as a 204-B Supervisor at the Richmond,

Texas Post Office;

3. Complainant will receive training from a combination of

supervisors and managers during the time period and training will be

overseen by the Postmaster; and

4. In the event that complainant believes that the agency is not

living up to the terms of the agreement, he will notify the Postmaster

in writing of his concerns. The Postmaster will schedule a meeting

and confer with complainant regarding his concerns within 10 days.

Exercise of this provision of the agreement will extend any other time

periods for seeking relief under this settlement.

EEOC Regulation 29 C.F.R. � 1614.504(a) provides, in pertinent part,

that if the complainant believes that the agency has failed to comply with

the terms of a settlement agreement, the complainant shall notify the EEO

Director, in writing, of the alleged noncompliance within 30 days of when

the complainant knew or should have known of the alleged noncompliance.

In addition, EEOC Regulation 29 C.F.R. � 1614.504(b) provides, in

pertinent part, that the agency shall resolve the matter and respond

to the complainant, in writing. If the agency has not responded to the

complainant, in writing, or if the complainant is not satisfied with the

agency's attempt to resolve the matter, the complainant may appeal to the

Commission for a determination as to whether the agency has complied with

the terms of the settlement agreement. The complainant may file such

an appeal 35 days after he has served the agency with the allegations

of noncompliance, but must file an appeal within 30 days of his receipt

of an agency's determination.

In the present case, we find that complainant's failure to notify the

EEO Director of the alleged breach before he filed the instant appeal

is in violation of 29 C.F.R. � 1614.504(a). The record indicates that

complainant filed his appeal with the Commission and sent a copy of his

appeal to the agency's EEO Office on the same day - August 28, 2008.

Although complainant wrote in a July 18, 2008 letter to the Postmaster of

the Richmond Post Office, "This official notice complies with the terms of

the settlement agreement ... and fulfills my obligation of 10 day notice

that I consider the agency in breach of settlement," we find that the

letter did not constitute proper notice under 29 C.F.R. � 1614.504(a),

as it was sent to the Postmaster of the Richmond Post Office and not to

the agency's EEO Office.

We observe that it is now well beyond the 35 day timeframe that the

agency had to respond to complainant's breach allegation and that it

has not done so, either by responding to complainant's appeal or by

issuing a decision in writing. After careful consideration, we REMAND

complainant's allegation of noncompliance to the agency for processing

consistent with this decision and the Order below.

ORDER

The agency is ordered to process the remanded claim of noncompliance,

unless otherwise noted, in accordance with 29 C.F.R. � 1614.504.

The agency shall acknowledge to complainant that it has received the

remanded claim, resolve the matter, and provide a written response with

appropriate rights to complainant within thirty (30) calendar days of

the date this decision becomes final.

A copy of the agency's determination must be submitted 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

May 14, 2010

Date

2

0120083755

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120083755