01A13133_r
09-05-2001
Anthony R. Espinoza, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony R. Espinoza v. United States Postal Service
01A13133
September 5, 2001
.
Anthony R. Espinoza,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13133
Agency Nos. 1-J-491-0001-01 and 1-J-491-0022-99
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's complaints of unlawful employment discrimination
that the parties had settled is proper. See 29 C.F.R. � 1614.504.
The record indicates that on January 24, 2000, the parties originally
entered into a settlement agreement in order to resolve complainant's
complaint, Agency No. 1-J-491-0022-99, concerning his termination as a
casual employee. The settlement agreement provided, in part, that:
On February 29, 2000, complainant will take the MEGA 470 exam at the
Lansing facility, located at 4800 Collins Rd., Lansing, MI, at 9:00 a.m.
If complainant passes his MEGA 470 exam, at the first opportune time
complainant will be brought in as a career PTF probationary employee.
On September 15, 2000, complainant, in Agency No. 1-J-491-0001-01,
claimed that the agency breached the above settlement agreement when he
was not hired as a career PTF employee, whereas 21 other people were
hired into the agency. In order to resolve the subject matter, the
parties entered into another settlement agreement, dated November 8,
2000, which provided, in part, that:
Complainant's manager will call Detroit and Royal Oak to determine when
the next battery 470 exam will be given and will pass this information
on to complainant. The manager will ask the Plant Manager and the
Postmaster about longevity pay for casual employees. Complainant can
add 2 choices for Saginaw area and 1 additional choice for the 470
register within the next 30 days. Within contractual requirements if
mail handler or clerk casual positions are available and complainant's
attendance and work performance are acceptable he will continue as a
casual in the Lansing Plant or Customer Service as long as complainant
wishes to remain continuously employed. Complainant has the option of
skipping an appointment or taking an abbreviated appointment. If reached
on the 470 register, complainant will be selected as long as there are
no violations of the veterans preference and as long as complainant's
work performance is satisfactory.
Complainant alleged that the November 8, 2000 settlement agreement
was not binding and he should receive a PTF career position under the
January 24, 2000 settlement agreement. Complainant claimed that the
agency entered into the November 8, 2000 settlement agreement in bad
faith. Specifically, complainant indicated that he signed the subject
settlement agreement because he was told that only transfers, and no
hiring, would take place, but he recently learned that the agency was
hiring non-veteran mail handlers for career positions. Upon review,
the Commission finds that other than complainant's mere assertions,
there is no evidence in the record that he was under duress or coercion
nor is there any evidence of misrepresentation or mistake on the part of
either party at the time of the instant settlement agreement. See Love
v. United States Postal Service, EEOC Appeal No. 01893655 (October 19,
1989). Furthermore, the settlement agreement at issue does not provide
that the agency will not hire any career position employee nor that
complainant will be hired for a next career position. If complainant
expected to receive a career position, such expectation should have
been expressively provided in the settlement agreement. See Eggleston
v. Department of Veterans Affairs, EEOC Request No. 05900795 (August 23,
1990). It is noted that the agency, in its decision, stated that when
complainant's name is reached on the 470 register, he will be selected
as long as he is not hired before a veteran and his work performance
remains satisfactory under the settlement agreement. Accordingly,
the agency's decision not to reinstate the settled matter is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M701)
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
September 5, 2001
__________________
Date