01994647_r
07-13-2001
Norris J. Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Norris J. Washington v. United States Postal Service
01994647
July 13, 2001
.
Norris J. Washington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994647
Agency No. 2H-1056-92
DECISION
Complainant filed a timely appeal with this Commission from a decision
by the agency dated April 19, 1999, effectively finding that it was in
compliance with the terms of the February 5, 1994 settlement agreement
into which the parties entered. The settlement agreement provided,
in pertinent part, that complainant be given full-time status as an
Operations Clerk, that he be given a break each day to administer an
insulin injection and a locker to keep his insulin and related articles,
that he be credited with a certain number of accrued hours of sick and
annual leave, and that he be awarded $125,000 in compensatory damages.
In an �Information for Precomplaint Counseling� form dated October 2,
1998, complainant alleged that the agency was in breach of the settlement
agreement as a result of certain discriminatory actions, and requested
compensatory damages. Specifically, complainant alleged that the agency
broke a mutual agreement of May 1994 and breached his contract when his
work station was tampered with, the agency provided no safe handicapped
parking, the agency never documented his fall on the dock in the winter
1995 that resulted in two operations, and he was not provided with a
fan to keep him from heat stress associated with his diabetes. In its
April 19, 1999 decision, the agency found that it had not breached the
settlement agreement. On appeal, complainant asserts that the agency
continually breached the February 5, 1994 settlement agreement and that
those actions amounted to continuous retaliatory harassment.
Upon review of the record, we find that, to the extent complainant
alleged noncompliance with the February 5, 1994 settlement agreement,
he has failed to show any evidence of an agency breach. However,
we also find that the agency improperly treated complainant's October
2, 1998 Information for Precomplaint Counseling form as a breach of
settlement claim and not as an attempt to file a separate complaint of
discrimination. Although complainant did claim breach of the February
5, 1994 settlement agreement in the Precomplaint Counseling form and
attached letter, it is clear from the record that none of complainant's
breach claims relate to the terms of the February 5, 1994 settlement
agreement; instead, these claims concern subsequent alleged acts of
discrimination relating to the agency's alleged failure to accommodate
complainant's disability. Moreover, the agency ignored complainant's
request for counseling and his attempt to fashion the matter as an EEO
complaint. Therefore, as complainant has alleged that subsequent acts
of discrimination violated the February 5, 1994 settlement agreement,
we remand complainant's claims for processing as a separate complaint
of discrimination. See 29 C.F.R. � 1614.504(c). As it appears that
complainant did not received EEO counseling concerning his claims, the
agency shall begin processing the matter at the point it ceased after
EEO Counselor contact.
Accordingly, the portion of the agency's April 19, 1999 decision finding
no breach of the February 5, 1994 settlement agreement is hereby AFFIRMED.
The portion of that decision that failed to address complainant's new
claims of discrimination is REVERSED, and the matter is REMANDED for
processing in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within 15 calendar days of the date this decision becomes final,
the agency shall resume processing from the point processing ceased,
pursuant to 29 C.F.R. � 1614.105 et seq., the claims of discrimination
raised by complainant in the �Information for Precomplaint Counseling�
form dated October 2, 1998.
Within 15 calendar days of the date this decision becomes final, the
agency shall issue a notice to complainant informing him that it has
resumed processing the claims of discrimination raised by complainant in
the �Information for Precomplaint Counseling� form dated October 2, 1998.
A copy of the agency's notice to complainant 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 (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 (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
July 13, 2001
__________________
Date