John M. Gay, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionMay 15, 2001
01A11933 (E.E.O.C. May. 15, 2001)

01A11933

05-15-2001

John M. Gay, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast Area), Agency.


John M. Gay v. United States Postal Service

01A11933

May 15, 2001

.

John M. Gay,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 01A11933

Hearing No. 150-AO-8534X

Agency No. 4H330019100

DECISION

INTRODUCTION

Complainant filed a timely appeal with this Commission from a final

agency action dated December 15, 2000 concurring in a decision by an EEOC

Administrative Judge (AJ) dismissing his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal

in accordance with 29 C.F.R. � 1614.405.

BACKGROUND

In his complaint, complainant alleged that the agency had retaliated

against him, in violation of a non retaliation clause in a settlement

agreement dated June 28, 1999, when on December 11 and 18, 1999, it did

not select him to serve as acting manager of the agency's Bright Station

and Palmetto Lakes facilities in South Florida.

The agency accepted the complaint for investigation. At the conclusion

of the investigation, complainant requested a hearing before an AJ.

The AJ to whom the case was assigned determined that the matter should

be dismissed. In the AJ's view, the exclusive remedy for a claimed breach

of a settlement agreement was to be found in the procedures established

in 29 C.F.R. � 1614.504. The AJ concluded that �an allegation that here

has been a violation of an existing settlement agreement does not create

a new claim or cause of action under the regulations.�

From the agency's order concurring with the AJ's decision, complainant

brings the instant appeal.

ANALYSIS AND FINDINGS

The general proposition is correct that a settlement breach will not

give rise to a new cause of action and must be processed pursuant to

29 C.F.R. � 1614.504. However, � 1614.504(c) creates an explicit

exception to that rule. It provides that �[a]llegations that subsequent

acts of discrimination violate a settlement agreement shall be processed

as separate complaints under � 1614.106 or � 1614.204 as appropriate,

rather than under this section.� Commission precedent establishes that

claims of breach of anti-retaliation clauses are to be processed as

separate complaints. See Bindal v. Department of Veterans Affairs, EEOC

Request No. 05900225 (August 9, 1990) (a complaint which alleges reprisal

in violation of a settlement agreement's "no reprisal" clause is to be

processed as a separate complaint and not as a breach of settlement).

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not specifically discussed in this decision, the Commission REVERSES

the agency's final action and REMANDS the matter in accordance with this

decision and the ORDER below.

ORDER

The complaint is remanded to the Hearings Unit of the EEOC Miami District

Office for scheduling of a hearing in an expeditious manner. The agency

is directed to submit a copy of the complaint file to the EEOC Hearings

Unit within fifteen (15) calendar days of the date this decision becomes

final. The agency shall provide written notification to the Compliance

Officer at the address set forth below that the complaint file has been

transmitted to the Hearings Unit. Thereafter, the Administrative Judge

shall issue a decision on the complaint in accordance with 29 C.F.R. �

1614.109 and the agency shall issue a final action in accordance with

29 C.F.R. � 1614.110.

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

May 15, 2001

__________________

Date