01991348
01-29-2001
Ellen N. Day, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ellen N. Day v. United States Postal Service
01991348
January 29, 2001
.
Ellen N. Day,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991348
Agency No. 4-H-320-1310-94
DECISION
On July 21, 1997, complainant alleged breach of an April 16, 1997
settlement agreement, and requested reinstatement of her complaint.
When the agency denied breach, complainant appealed to this Commission.
The Commission was unable to determine whether breach occurred
without information concerning whether complainant was scheduled for
a fitness-for-duty exam, whether she was allowed to seek the medical
opinion of a third party, and whether she passed the exam. See Day
v. United States Postal Service, EEOC Appeal No. 01976667 (Aug. 4,
1998).<1> Therefore, the Commission remanded the claim for a supplemental
investigation. See id.
On October 26, 1998, the agency issued a new decision finding no breach.
In this decision, the agency found that complainant was �personally
unsuitable� for the window clerk position referenced in the settlement.
The agency explained that personal suitability is determined prior to
medical suitability, and was part of the normal employment decision
process. According to the agency, complainant was personally unsuitable
�based on false or misleading responses on [her] employment application.�
The agency also failed to recommend complainant for employment because
of her prior employment safety history.
The supplemental investigation includes no reference to complainant's
safety history, or statement from the District Safety Officer.
The agency also failed to provide evidence to explain �personal
suitability� employment requirements. The record includes a June 9,
1997 letter from the agency indicating that �[complainant] ha[s] been
selected for PTF DISTRIBUTION WINDOW CLERK/WITH DRIVING RESPONSIBILTIES
. . . pending a determination of medical suitability.� (Emphasis in
original). Concerning complainant's veracity, the file includes two
letters from the agency questioning yes/no answers she gave on medical
history questionnaires. Complainant responded to each letter with an
in-depth description of the relevant condition, and why she answered
�no� to the questions.
The Commission finds that the agency has failed to act in good faith,
and therefore, has breached the agreement. In contrast to the agency's
argument in its October 26, 1998 decision, the agreement provided
that complainant's medical suitability would be determined prior to any
other hiring prerequisites. The agreement made no express provision for
�personal suitability.� Even assuming that the settlement agreement and
agency preemployment procedures provided for a �personal suitability�
determination prior to medical suitability, the agency clearly notified
complainant that she was being selected pending the results of her
medical exam. Further, the Commission notes that complainant provided
a credible, detailed explanation for each issue the agency questioned
as misleading. The agency provided no evidence that complainant failed
(or passed) any other hiring prerequisite. Therefore, the Commission
finds that the agency breached the April 16, 1997 settlement agreement.
In numerous letters during the pendency of this breach claim, complainant
requested reinstatement of her underlying complaint. The Commission
finds that this remedy is appropriate.
CONCLUSION
Accordingly, the agency's finding of no breach is REVERSED, and the
complaint is REMANDED for further processing pursuant to the order below.
ORDER
The agency must resume the processing of complainant's underlying
complaint, Agency Number 4-H-320-1310-94, from the point processing
ceased. Because the file includes a copy of the investigative report
for this complaint, the agency must, within thirty (30) calendar days of
receiving this decision, notify complainant of her right to a hearing
with an EEOC Administrative Judge, or an immediate agency decision
on the merits of her complaint as provided in 29 C.F.R. � 1614.108(f).
The agency must provide the Compliance officer with a copy of this notice,
as provided herein.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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
January 29, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Commission's prior decision lists the relevant settlement
provisions.