01992882
12-28-1999
Craig W. Carr, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Craig W. Carr v. United States Postal Service
01992882
December 28, 1999
Craig W. Carr, )
Complainant, )
)
v. ) Appeal No. 01992882
) Agency No. 4E-852-0114-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On February 25, 1999, the complainant filed a timely appeal with
this Commission from a final decision (FAD) by the agency concerning
his allegations that the agency violated the terms of a settlement
agreement.<1> The agency's FAD was dated January 19, 1999, and the
record shows that the complainant received the FAD on January 28, 1999.
The appeal is accepted in accordance with the provisions of EEOC Order
No. 960, as amended. 64 Fed. Reg. 37,644, 37,659, 37,660 (1999) (to be
codified and hereinafter referred to as EEOC Regulations 29 C.F.R. ��
1614.402, 1614.504(b)).
The record shows that the complainant initiated an informal complaint
on March 18, 1998, alleging discrimination based on mental and physical
disability when he was denied full base salary increases and bonuses
because of his on-the-job injury. On April 16, 1998, the complainant
signed a "Withdrawal of Informal EEO Complaint of Discrimination"
(Withdrawal) which stated that:
I, (the complainant) do hereby voluntarily withdraw my informal Equal
Employment Opportunity complaint. I fully understand that by withdrawing
my informal complaint I am waiving my rights to any further appeal of
this informal complaint through the EEO process. I further stipulate
that my withdrawal did not result from threat, coercion, intimidation,
promise or inducement.
I further stipulate that this withdrawal is made with the assurance that
I will have the opportunity to discuss my issue(s) with at least the
Supervisor, Accounting Services [SAS] and that this withdrawal should
not be construed by anyone to imply that my original allegation was
without merit. I stipulate that I will make every effort to resolve,
what I feel are meritorious issue(s) through discussion, before pursuing
any Administrative Appeal(s).
We note that no agency official signed the Withdrawal. By letter dated
October 20, 1998, the complainant notified the Senior EEO Complaints
Processing Specialist that he had only received a partial settlement
to his claim. He stated that he still had not received the adjustment
to his base pay that the EEO Counselor told him he would in a phone
conversation. He further stated that he had withdrawn his complaint
because the EEO Counselor and the SAS told him that they would look into
the issues and that he could reinstate his complaint if he was not happy
with the settlement. He also requested that his complaint be reinstated
based on reprisal discrimination against an injured employee and age.
In its FAD, the agency stated that in May 1998, the complainant, the
EEO counselor and the SAS discussed the complainant's pay adjustment.
The letter further stated that in December 1998, the SAS had made an
inquiry to headquarters regarding the complainant's pay. The SAS was
informed of agency policy regarding leave without pay (LWOP) status and
merit increases. The letter provided the address where the complainant
could request a deviation from that policy and informed the complainant
that the agency would not reinstate his complaint because the terms of
the withdrawal had been met.
On appeal, the complainant contends that he only withdrew his complaint
because he was told that he could reinstate it if the administrative
process did not reach a result that met his satisfaction. The complainant
asserts that he and the EEO Counselor had a written agreement which
included a supplemental page addressing his ability to reopen his
complaint. He further argues the merits of his discrimination claims.
We note that no such written agreement is contained in the record.
We also note that the complainant does not dispute that the May 1998
meeting with the SAS occurred. The agency requested that its decision
be affirmed.
ANALYSIS AND FINDINGS
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at 29 C.F.R. �
1614.504(a)) provides in relevant part, 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. In order for
a settlement agreement between parties in an administrative EEO proceeding
to be enforceable, the settlement agreement reached must be in writing,
signed by both parties and must identify the claims resolved. See 64
Fed. Reg. 37,644, 37,661 (1999) (to be codified at 29 C.F.R. � 1614.603).
The Commission has upheld the validity of a settlement entered into
orally primarily in one type of situation - where the terms of the
settlement agreement are read into the record of an EEO proceeding before
an administrative judge. See Kusel v. Department of the Air Force, EEOC
Request No. 05931159 (March 4, 1994).
In the instant case, the complainant alleged that the agency failed
to comply with certain provisions of a settlement between himself and
the EEO Counselor purportedly reached in April 1998, when he withdrew
his informal complaint. After a careful review of the record, we find
that the agency properly did not reinstate the complainant's complaint.
The complainant apparently relied on his withdrawal statement of April 16,
1998, in conjunction with the meeting between himself, the EEO counselor
and the SAS in alleging that the agency breached an agreement to allow him
to reinstate his complaint. However, there is no document in the record
manifesting an intent on the part of the agency to enter into a binding
settlement agreement. We are not persuaded by the complainant that an
oral agreement amended the written withdrawal he signed. The written
withdrawal only provided for a discussion between the complainant and
the SAS which undisputedly occurred. The record contains no evidence
of a supplemental agreement reached by the agency and the complainant.
Therefore, we find that the agency's decision not to reinstate the
complainant's complaint was correct.
Accordingly, for the reasons stated herein, it is the decision of the
Commission to AFFIRM the agency's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
Dec. 28, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.