Jack B. Wiener, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 31, 2001
01996767 (E.E.O.C. Oct. 31, 2001)

01996767

10-31-2001

Jack B. Wiener, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jack B. Wiener v. United States Postal Service

01996767, 01A14214

October 31, 2001

.

Jack B. Wiener,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal Nos. 01996767, 01A14214

Agency Nos. 1F-901-0286-97, 1F-901-0041-01

DECISION

Complainant filed two timely appeals with this Commission from an agency

decision dated September 12, 1999, and a decision dated June 1, 2001.

Complainant filed a formal complaint (Agency Case No. 1F-901-0286-97)

on September 6, 1997, in which he alleged that he was subjected to

discrimination on the bases of race (White), color (white), religion

(Hebrew), age (D.O.B. 6/19/38), disability (degenerating disc), and

prior EEO activity when the agency changed complainant's off days from

Saturday/Sunday to Monday/Tuesday because of his light duty status.

The record reveals that complainant's complaint reached an EEOC

Administrative Judge (AJ). By letter dated May 26, 1999, the AJ

determined that complainant's complaint concerned a breach of settlement

agreement claim and not a separate EEO complaint and therefore the AJ

remanded complainant's complaint to the agency for further processing

pursuant to 29 C.F.R. � 1614.504.

The record reveals that the parties entered into a settlement agreement

dated July 1, 1992. The settlement agreement provided, in pertinent

part, that:

This agreement is settled to stipulate the employee [complainant] is

removed from Crenshaw scheme. He is being re-assigned to WK CT No. 11

with Sat/Sun off days. This will remain in effect until such time posted

makes another adjustment. At that time reasonable accommodation will

be made again.

By letter to the agency dated June 3, 1999, complainant alleged that

the agency was in breach of the settlement agreement. Specifically,

complainant alleged that in September 1997, the agency changed his days

off to Monday/Tuesday, in violation of the agreement.

The agency issued a decision dated August 12, 1999, finding that it was in

compliance with the terms of the July 1, 1992 settlement agreement into

which the parties entered. The agency stated that on November 14, 1992,

complainant was adjusted under reasonable accommodations Article 13 to

have the Crenshaw scheme assignment with Monday/Tuesday non-scheduled

days. The agency stated that from January 1, 1993, to July 5, 1997,

complainant's off days remained Saturday/Sunday unofficially until skill

assignment need was reintroduced with an effective date of July 5, 1997.

The agency stated that on June 27, 1997, complainant was issued official

notification that his off days were being changed to Monday/Tuesday under

Article 13 reasonable accommodations. The agency concluded that it did

not breach the July 1, 1992 agreement.

The record reveals that complainant filed a formal complaint (Agency Case

No. 1F-901-0041-01) dated April 5, 2001, in which he alleged that he

was subjected to discrimination on the bases of race (White), religion

(Hebrew), and disability (degenerative disc) when on or about December

2, 2000, complainant became aware that a supervisor's days off had been

changed to accommodate attendance at religious service while complainant

has been denied such accommodation.

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 29 C.F.R. � 1614.107(a)(1), for stating the same claim

that is pending before or has been decided by the agency or Commission.

The agency noted that the present complaint involved a claim that the

agency failed to afford complainant a religious accommodation when it

denied him Saturday/Sunday days off. The agency stated that complainant

entered into a settlement agreement in July 1992, in which his days off

were changed to Saturday/Sunday. The agency stated that in July 1997,

when complainant's off days were changed to Monday/Tuesday, he brought

the matter to the attention of the EEO Office and ultimately filed a

formal complaint on September 6, 1997 (Agency Case No. 1F-901-0286-97).

The agency stated when the AJ remanded the case for processing as a breach

of settlement case, it subsequently issued a decision finding that the

agency had not breached the agreement. Thus, the agency claimed that

the present claim concerning the denial of Saturday/Sunday days off as

a religious accommodation is an identical claim that has been decided

by the agency and is currently pending before the Commission (Agency

Case No. 1F-901-0286-97).

At the outset, we note that in Agency Case No. 1F-901-0286-97, we find

that in challenging the agency's action of changing his days off from

Saturday/Sunday to Monday/Tuesday, complainant alleged both that the

agency breached the July 1, 1992 settlement agreement, and that the

agency committed a subsequent act of discrimination when it denied

him a reasonable accommodation. With regard to the agency's decision

regarding the July 1992 settlement agreement, we find that the agency

properly determined that it did not breach the agreement. The length of

time complainant was accommodated with Saturday/Sunday days off indicates

"substantial compliance" on the part of the agency. See generally Buckley

v. United States Postal Service, EEOC Appeal No. 01903564 (September 17,

1990), request to reopen denied, EEOC Request No. 05910082 (April 4,

1991). The record indicates that complainant was given Saturday/Sunday

days off until July 5, 1997, a period of approximately five years.

Additionally, there is no evidence in the record to indicate that the

agency entered into the settlement agreement in bad faith. Based on

the foregoing, we find that the agency complied with the terms of the

settlement agreement.

With regard to the agency's decision in Agency Case No. 1F-901-0041-01,

we find that the agency improperly dismissed this complaint for stating

the same claim pending before or previously decided by the agency or

Commission. In this complaint, complainant alleged that he was subjected

to discrimination when the agency failed to accommodate his attendance

at religious services. In Agency Case No. 1F-901-0286-97, as discussed

above, although complainant alleged that he was discriminated against when

he was denied a reasonable accommodation to attend religious services,

the agency decision dated August 12, 1999, only addressed the breach

of settlement claim. Thus, the agency improperly dismissed Agency Case

No. 1F-901-0041-01, for stating the same claim previously decided by the

agency or Commission. Upon review, the Commission finds that complainant

unsuccessfully attempted by letter dated June 3, 1999, to raise the

issue of the agency's alleged discriminatory failure to grant him a

reasonable accommodation to attend religious services in September 1997.

The Commission views complainant's April 5, 2001 formal complaint as

providing additional evidence in support of his claim that the agency

discriminatorily failed to provide him a reasonable accommodation.<1>

Therefore, the Commission remands this claim to the agency for further

processing as a complaint of discrimination in accordance with the

Order below.

Accordingly, the agency's decision in Agency Case No. 1F-901-0286-97,

that it did not commit a breach of settlement agreement is AFFIRMED.

The agency's decision dismissing Agency Case No. 1F-901-0041-01,

is REVERSED and the complaint is REMANDED for further processing in

accordance with the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights 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

October 31, 2001

__________________

Date

1The Commission does not address in this

decision whether such additional evidence actually supports the claim

of discrimination. The Commission only finds that such evidence was

submitted to the agency in the form of a complaint for such a purpose as

supporting complainant's claim that he was disriminatorily not reasonably

accommodated.