01985802
04-02-1999
David A. Ford, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David A. Ford v. United States Postal Service
01985802
April 2, 1999
David A. Ford, )
Appellant, )
) Appeal No. 01985802
v. ) Agency No. 1K-211-0090-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On July 18, 1998, appellant filed an appeal with this Commission after
receiving no response from the agency to his notice of settlement breach
dated April 6, 1998. An appellant may appeal to the Commission for a
determination as to whether the agency has complied with the terms of a
settlement agreement no sooner than 35 days after serving notice to the
agency, when the agency fails to respond to the notice of breach. See
EEOC Regulation 29 C.F.R. �1614.504(b). Accordingly, the appeal is
accepted as timely.
A review of the record reveals that appellant filed a formal EEO
complaint, Agency Number 4-D-210-1135-95, alleging that he had
been subjected to unlawful discrimination on the bases of race
(African-American) and sex (male). The agency initially accepted
appellant's complaint for processing, and conducted an investigation.
Prior to a hearing being held, appellant and the agency settled the
complaint on November 22, 1997. The settlement agreement provided,
in pertinent part, that:
(1) Appellant will be hired as a casual employee for two (2) appointments
after successfully completing and passing a Fitness for Duty Exam;
(2) Appellant will be subject to all attendance and work performance
requirements pursuant to postal regulations at ELM; and
(3) Complainant will work as a Tour 1 casual employee either at the
General Mail Facility (GMF) or the Incoming Mail Facility (IMF).
By letter dated April 6, 1998, appellant notified the agency of breach of
the November 22, 1997 settlement agreement. Appellant asserted that the
agency changed the location of his employment to Baltimore/Washington
International Airport (BWI) in violation of provision (3) of the
settlement agreement, that the agency changed his duty hours in violation
of provision (3), and that appellant was terminated from his casual
employment position in violation of provision (1).
Appellant initiated counseling on April 21, 1998, and filed a formal
complaint on June 11, 1998, alleging breach of settlement. By letter
dated July 18, 1998, appellant requested that the Commission enforce
the November 22, 1997 settlement agreement.
On July 29, 1998, the agency issued a final agency decision (FAD),
finding that appellant's allegations failed to state a claim pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a), but remanded the allegations to
determine whether a settlement breach occurred pursuant to EEOC Regulation
29 C.F.R. �1614.504.
The record contains a memo dated February 6, 1998, informing appellant
that effective February 9, 1998, his job site was being relocated to BWI,
and a letter dated March 24, 1998, notifying appellant that his employment
was terminated effective April 2, 1998. Also included in the record is
a copy of the Counselor's Report. Attached to the report are numerous
absence notices, and a letter from agency officials dated March 11,
1998, explaining that appellant was fired for taking more absences than
allowed under ELM postal regulations. A copy of the postal regulations,
however, is not included in the record.
ANALYSIS AND FINDINGS
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. In addition, the Commission has held that a settlement
agreement constitutes a contract between the employee and the agency,
to which ordinary rules of contract construction apply. See Herrington
v. Department of Defense, EEOC Request No. 05960032 (December 9, 1996).
The Commission has previously held that, pursuant to EEOC Regulation 29
C.F.R. �1614.504 an agency has 35 days from the receipt of an appellant's
allegation of breach to resolve the matter, or to cure any breach that
has occurred. See Covington v. United States Parcel Service, EEOC Appeal
No. 01913211 (Sept. 30, 1991), request for reconsideration denied,
EEOC Request No. 05920191 (Mar. 12, 1992). Further, an agency's failure
to respond within 35 days essentially divests the agency of jurisdiction
over the claim of breach. See Zalewski v. Department of Veterans Affairs,
EEOC Appeal No. 01964684 (1997) (holding that an agency decision issued
after appellant filed an appeal was insufficient because the agency
response was more than 35 days after appellant gave the agency notice
of breach, and after appellant appealed to the Commission). Further,
EEOC Regulation 29 C.F.R. �1614.504(b) provides that if the agency has not
responded to appellant in writing within 35 days, appellant may appeal to
the Commission for a determination as to whether the agency has complied
with the terms of the settlement agreement. Consequently, the agency's
July 29, 1998 FAD does not adequately address appellant's allegations
of breach, and the Commission must determine whether breach occurred.
In the present case, the Commission finds that the agency did not comply
with the November 22, 1997 settlement agreement. Provision (3) of the
settlement agreement clearly provides that appellant would be assigned
to work at GMI or IMF on tour 1 duty hours, but appellant was relocated
to a different location with hours beginning at 6:00 p.m. Accordingly,
the agency breached the November 22, 1997 settlement agreement.
With regard to appellant's removal, we find that the agency was not
in breach of the subject agreement. Appellant's allegation that he was
discriminatorily removed on July 24, 1998, is not an action covered by
the subject agreement. The agreement provides that appellant would be
hired as a casual employee, that he will be subject to all attendance
and work requirements, and the location and tour on which he will work;
it does not address termination of employment. Consequently, we find
that appellant's removal is a new matter on which appellant must seek
EEO counseling and file as a separate complaint if he wishes to further
pursue the issue. 29 C.F.R. �1614.504(c).
Once a breach is found, as the case herein, the remedial relief is either
the reinstatement of the complaint for further processing or specific
enforcement of the settlement agreement. If an appellant's complaint is
reinstated for further processing, then the parties must be returned to
the status quo at the time that the parties entered into the settlement
agreement, which requires that an appellant return any benefits received
pursuant to the settlement agreement. See, e.g., Armour v. Department of
Defense, EEOC Appeal No. 01965593 (June 24, 1997); Komiskey v. Department
of the Army, EEOC Appeal No. 01955696 (Sept. 5, 1996). The Commission
finds that reinstatement of appellant's complaint is the appropriate
remedy, because appellant is no longer employed by the agency.
CONCLUSION
Accordingly, this matter is REMANDED to the agency for reinstatement of
the complaint for further processing.
ORDER
The agency is ORDERED to resume processing of appellant's COMPLAINT(S)
from the point processing ceased. Specifically, the agency shall forward
appellant's COMPLAINT(S) to an EEOC Administrative Judge (AJ) to schedule
a hearing. The agency shall acknowledge to appellant that it has resumed
processing of appellant's complaint and request assignment of an AJ
within thirty (30) calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the request for assignment of an AJ must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
April 2, 1999
______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations