01A05744_r
04-20-2001
Barbara J. Cheeks v. United States Postal Service 01A05744 April 20, 2001 . Barbara J. Cheeks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara J. Cheeks v. United States Postal Service
01A05744
April 20, 2001
.
Barbara J. Cheeks,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05744
Agency No. 4D-230-0173-00
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's EEO matter that the parties had settled is
improper. See 29 C.F.R. � 1614.504. The record indicates that on April
5, 2000, complainant filed an informal complaint concerning a notice of
removal. Thereafter, on June 19, 2000, the parties resolved the matter by
entering into a settlement agreement, which provided, in pertinent part,
that: management reduced the current removal to a 30-day suspension-time
served pending the first week of June 2000; the parties will enter into a
Last Chance Agreement within the next 10 calendar days; the Last Chance
Agreement will be in effect for one year from the date signed; and the
removal of the 30-day letter of suspension will remain in the file for the
period of the Last Chance Agreement and will be purged. By letter dated
July 17, 2000, complainant alleged breach of the settlement agreement
in that she could not sign the Last Chance Agreement which was offered
to her on June 29, 2000, because �the wording was different from that
of� the settlement agreement. In its decision, the agency stated that
since the settlement agreement did not state the specific language of
the Last Chance Agreement, it did not breach the settlement agreement.
After a review of the record, the Commission finds that the settlement
agreement specifically provided that the parties will enter into the
Last Chance Agreement. Since the parties were not able to enter into
the Last Chance Agreement, the Commission finds the settlement agreement
void due to its impossibility. See Shuman v. Department of the Navy,
EEOC Request No. 05900744 (July 20, 1990). The Commission notes that
complainant's notice of removal was already reduced to a 30-day suspension
prior to the settlement agreement.
Accordingly, the agency's decision finding no settlement breach is VACATED
and the purportedly settled matter is REMANDED back to the agency for
further processing in accordance with this decision and applicable
regulations.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ORDERED to resume the processing of complainant's
EEO matter from the point processing ceased in accordance with Part
1614 regulations. The agency, within thirty (30) calendar days of the
date this decision becomes final, shall notify the complainant that it
has resumed processing her underlying EEO matter.
A copy of the agency's letter of processing to complainant must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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)(Supp. V 1993). 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 (M0900)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 20, 2001
__________________
Date