01a51671
04-28-2006
James B. Edge, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James B. Edge,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51671
Agency No. 1C-271-0060-02
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 16, 2004, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The record indicates that complainant, an Electronic Technician at
the agency's Processing and Distribution Center in Greensboro, North
Carolina, contacted an EEO Counselor on August 19, 2002, regarding a
claim of discrimination on the bases of race (Caucasian), sex (Male),
and age (DOB: February 23, 1953) when on August 19, 2002, his supervisor
brought to his attention that two female distribution clerk employees
(sisters) had complained that complainant was harassing them by working
"too close" to them. Complainant did not file a formal EEO complaint
on this matter because he entered into a settlement agreement with the
agency dated September 25, 2002.
By letter to the agency dated November 10, 2003, complainant alleged
that the agency breached the settlement agreement. The agency issued
its decision finding no breach of the settlement agreement on December
15, 2003. Complainant appealed that decision to the Commission. In EEOC
Appeal No. 01A41652, the Commission found that the agency breached the
settlement agreement and ordered the agency to resume the processing
of the settled EEO claims from the point processing ceased pursuant to
29 C.F.R. Part 1614. Edge v. United States Postal Serv., EEOC Appeal
No. 01A41652 (August 10, 2004).
Pursuant to the Commission's decision, by letter dated September 29, 2004,
the agency indicated that it would resume processing of the remanded
complaint. It also enclosed a copy of EEO Complaint of Discrimination
form if complainant chose to continue the processing of the remanded
complaint. On October 13, 2004, complainant submitted the form and
indicated that he was subjected to discrimination on the bases of race
(Caucasian), sex (male), and reprisal for prior protected EEO activity
when the agency refused to comply with the Commission's decision in EEOC
Appeal No. 01A41652.1
The agency dismissed the complaint pursuant to 29 C.F.R. � 1617.107(a)(1)
for failure to state a claim. The agency noted that the complaint filed
by complainant failed to show any direct or personal deprivation at the
hands of the agency. Finding that complainant did not assert that he
was subjected to an adverse action as a result of the alleged incident,
the agency dismissed the matter. Complainant appealed asserting that
he was harmed when the agency breached the settlement agreement.
Upon careful review of the arguments raised on appeal, as well as the
record, we find that complainant is inappropriately raising his claim for
compensatory damages regarding the breach of the settlement agreement.
The Commission's decision in EEOC Appeal No. 01A41652 found the agency
had breached the settlement agreement and determined the appropriate
remedy for complainant regarding the agency's breach. If complainant
believed that the remedy was insufficient, he should have filed a
timely request for reconsideration of EEOC Appeal No. 01A41652 with
the Commission. Complainant failed to do so. Therefore, we will
not entertain complainant's claim for compensatory damages based on
the agency's breach of the settlement agreement and affirm the agency
dismissal of the instant complaint.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 28, 2006
__________________
Date
1 Complainant did not include his original allegation in the formal
complaint concerning being informed by his supervisor that two employees
had complained he was harassing them. Therefore, the Commission will
assume that he has abandoned this claim and will not address it further.
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01A51671
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A51671