01a60225
04-14-2006
Brenda J. Diggs, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brenda J. Diggs,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60225
Agency No. 1C441001404
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 25, 2005, finding that it
was in compliance with the terms of the December 22, 2003 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) The parties [named] have decided to reduce communications in
writing to one another. If the parties want to have a conference
they will request the attendants [sic] of a facilitator to ensure
communications are productive and respective. If the Counselee wants
to file a grievance she will notify the OHNA and complete her current
assigned duties. The Counselee will notify the OHNA in advance of all
Dr. Appts. and allow her time to approve or disapprove even in case
of sudden illness. The OHNA (management) will start a departmental
performance
evaluation procedure for all employees within 90 days.
By letter to the agency dated July 27, 2005, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to issue her a performance evaluation as
agreed to in the settlement agreement. Since the time of the agreement,
complainant argued, she had been issued multiple disciplinary actions
without having a performance evaluation on file.
In its August 25, 2005 FAD, the agency concluded that complainant failed
to timely raise the breach to the EEO office. Specifically, the agency
found that the settlement agreement provided that a performance evaluation
procedure should have been created within 90 days of the signing of the
settlement agreement. Therefore, complainant had reason to know of the
breach well before she alerted the agency. Indeed, complainant had been
issued several disciplinary actions following the settlement agreement.
Since complainant did not bring this matter to the attention of the EEO
Office until July 2005, her notice of breach was untimely.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
Furthermore, 29 C.F.R. 1614.504 specifically states the following,
"if the complainant believes that the agency has failed to comply with
the terms of the settlement agreement or decision, the complainant shall
notify the EEO Director, in writing, of the alleged non-compliance within
30 days of when the complainant knew or should have known of the alleged
noncompliance."
In the instant case, the agency and complainant entered into an agreement
dated December 22, 2003 providing that the agency would implement
a performance evaluation procedure for all employees within 90 days.
Therefore, complainant should have known as of March 22, 2004, that the
agency had failed to issue her a performance evaluation as she claims
is required by the settlement agreement. Even if the agreement only
required that the agency implement a performance evaluation procedure,
complainant should have been able to ascertain whether the agency had
complied with this provision long before July 2005, when she was issued
a Notice of Removal without having ever received the disputed performance
evaluation. Accordingly, the agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (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
4/14/06
Date
2
01A60225
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
01A60225