01a52995
07-26-2005
James W. Coulter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James W. Coulter v. United States Postal Service
01A52995
July 26, 2005
.
James W. Coulter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52995
Agency No. 1G-756-0057-99
Hearing No. 310-2002-586X
DISMISSAL
Complainant filed an appeal with this Commission concerning the dismissal
of his formal complaint of unlawful employment discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
The record indicates that, in conjunction with a series of contacts
with the agency EEO Office related to alleged disability discrimination,
complainant contacted an EEO Counselor on February 10, 1999, and following
this contact, complainant's informal complaint was given the captioned
agency case number, Case No. 1G-756-0057-99. In an Information for
Pre-Complaint Counseling for the captioned complaint, dated February 19,
1999, complainant indicated that he sought EEO counseling on the issue
that he received a letter from an agency official notifying him that
due to absenteeism, complainant was being scheduled for a vocational
rehabilitation program.
On March 24, 1999, the parties reached a settlement agreement
specifically settling six of complainant's EEO complaints, including
Case No. 1G-756-0057-99. The settlement agreement provided that a
named agency official would do whatever possible to have complainant
reinstated to employment at an agency facility in Dallas, Texas.
However, after execution of the settlement agreement, on August 9, 1999,
complainant filed a formal complaint in agency Case No. 1G-756-0057-99.
Therein, complainant claimed that he was subjected to discrimination
on the basis of disability when he was sent a letter by management
scheduling him for vocational rehabilitation due to absenteeism, and
that he was absent because he was not allowed to return to work after
his hospitalization.
The agency accepted the complaint for investigation, and at the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). Following the issuance of a Show Cause Order,
the AJ dismissed the complaint for failure to state a claim, finding
that complainant had suffered no adverse action, and the agency fully
implemented the decision.
On appeal, the Commission found that complainant's claim was not
comprised solely of receipt of a letter scheduling him for vocational
rehabilitation. The Commission determined that a further review of the
record including pre-complaint documentation, an investigative affidavit,
and an appellate statement reflected that complainant's complaint further
included the issue that the agency refused to allow him to return to
work after a hospitalization. The Commission therefore concluded
that complainant's complaint stated a claim. The Commission reversed
the agency's final decision dismissing the complaint, and remanded the
complaint to the agency for further processing. Coulter v. United Stated
Postal Service, EEOC Appeal No. 01A32557 (August 30, 2004).
On remand, after issuing a new Show Cause Order, a newly assigned AJ
dismissed the case pursuant to the March 24, 1999 settlement agreement,
specifically finding that the issue had �previously been settled.� In
her February 8, 2005 decision, however, the AJ stated that �if it is the
Complainant's contention that the agency failed to abide by the March 24,
1999 settlement agreement, then the proper area of redress is an appeal
to [the Commission's Office of Federal Operations (OFO)] based on the
agency's alleged noncompliance with the settlement agreement pursuant
to 29 C.F.R. � 1614.504.� The AJ further stated that �[c]omplainant
should file an appeal with OFO if he believes that the Agency failed
to abide by the parties earlier settlement agreement as outlined in 29
C.F.R. � 1614.504.�
On March 5, 2005, complainant filed the instant appeal. Therein,
complainant stated, among other things, that he was contacting the
Commission �because I don't know what else to do� and that �[i]f I am to
request an appeal as suggested by [the AJ], then I do so at this time.�
However, in an additional April 20, 2005 submission on appeal, complainant
also claimed that �the [administrative] judges� never addressed �whether
[the agency] was correct in them placing me in the rehabilitation program,
and that �[m]y EEOC complaint was not about whether they followed the
settlement agreement or not, it has always been and always will be by
what right did they have to justify that action.� (emphasis added).
Upon review of the entire record, we determine that complainant failed
to present any matter that is properly the subject of appeal. The record
clearly indicates that complainant's claims in the captioned agency number
were settled as part of the March 24, 1999 settlement agreement with
the agency, and that the AJ's February 8, 2005 decision below correctly
dismissed complainant's discrimination complaint on those grounds.
Moreover, complainant has unequivocally stated on appeal that he is
not claiming breach of the March 24, 1999 agreement, but is seeking
adjudication of the underlying complaint in Case No. 1G-756-0057-99,
which was the subject of the settlement agreement.
Accordingly, the instant appeal is DISMISSED.
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
July 26, 2005
__________________
Date