01A20494_r
04-10-2002
Edward G. Hollingshed, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Edward G. Hollingshed v. United States Postal Service
01A20494
April 10, 2002
.
Edward G. Hollingshed,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20494
Agency No. 1F-953-0019-01
DECISION
The Commission finds that the agency's October 2, 2001 decision
dismissing complainant's complaint was proper. Complainant alleges
that he was discriminated against on the bases of race, sex, age, and
retaliation when (1) on March 27, 2001, he was notified that he was
disqualified from the Associate Supervisor Program (ASP) because he
had failed a test of his writing skills; and (2) on August 13, 2001,
the Chairperson of the Associate Supervisor Review Board failed to
adhere to a verbal agreement to assist him to pass the subject test.
The verbal agreement purportedly lead to complainant's withdrawal of a
prior complaint, identified as agency no. 1F-953-0009-01. The agency
dismissed claim 1 for untimely EEO Counselor contact pursuant to 29
C.F.R. � 1614.107(a)(2). The agency dismissed claim 2 for failure to
state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Regarding claim 1, the record indicates that complainant raised the same
claim in his prior complaint identified as agency number 1F-953-0009-01.
According to a letter written by complainant dated June 22, 2001, the
case was settled and complainant requested withdrawal of the complaint.
The record contains a copy of that settlement agreement dated May 22,
2001, resolving the prior complaint. Therefore, we find that claim 1 is
properly dismissed for raising the same claim that is pending or that
has been decided by the agency or Commission pursuant to 29 C.F.R. �
1614.107(a)(1). Since claim 1 is properly dismissed for the above cited
reason, we will not determine whether the claim was properly dismissed
on alternative grounds.
Regarding claim 2, we find that the agency should have treated
complainant's claim as a claim of breach of a May 22, 2001 settlement
agreement between the parties. The agency has failed to address
whether the agency breached the settlement agreement. The record
is insufficient to determine if the agency breached the May 22, 2001
agreement. Therefore, we shall remand the matter so that the agency may
supplement the record with evidence addressing whether it has complied
with the May 22, 2001 settlement agreement and issue a decision regarding
the breach of settlement claim.
The agency's decision dismissing claim 1 is AFFIRMED, for reasons set
forth herein. The agency's decision dismissing claim 2 is VACATED.
The matter is REMANDED to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER
The agency is ordered to process claim 2 as a claim of breach of the May
22, 2001 settlement agreement. The agency shall, within 30 days of the
date this decision becomes final, supplement the record with evidence
addressing whether it has complied with the May 22, 2001 settlement
agreement and issue a decision as to whether it is in compliance with
pertinent provisions of the May 22, 2001 settlement agreement. A copy of
the decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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 (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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
April 10, 2002
__________________
Date