01A02835_r
04-03-2002
Barbara A. Morris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barbara A. Morris v. United States Postal Service
01A02835
April 3, 2002
.
Barbara A. Morris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02835
Agency No. 1H-366-0004-99
DECISION
The Commission finds that the agency's January 27, 2000 letter of
determination dismissing complainant's breach of settlement claim,
is improper pursuant to 29 C.F.R. � 1614.504.
The record reflects that complainant pursued the EEO complaint process
regarding a letter of warning that was issued on October 30, 1998. On
January 20, 1999, the parties resolved complainant's complaint by
entering into a settlement agreement which contained, in pertinent part,
the following provision:
(1) [An agency official] agrees to withdraw the letter of warning from
[complainant's] file;
By letter dated September 14, 1999, complainant claimed breach of the
January 20, 1999 settlement agreement, and requested that her complaint
be reinstated. Specifically, complainant claimed that the agency
breached provision (1) by not removing the letter of warning from her
personal file.
In its January 27, 2000 decision, the agency stated that complainant's
allegation of settlement breach regarding the letter of warning was
untimely raised. The agency determined that it was not raised within
thirty (30) days of the date that complainant knew of the alleged
noncompliance. The agency further stated that complainant knew of the
alleged noncompliance on July 26, 1999, when the agency sent a letter
to complainant informing her that the letter of warning was sent to the
U.S. Department of Labor, Office of Workers' Compensation Programs (OWCP)
in Jacksonville, Florida. Therefore, the agency denied complainant's
request to reinstate her complaint.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement, the complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30
days of the date when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
Here, we find that complainant's allegation of settlement breach was
raised in a timely manner. Although complainant did not contact the
EEO Director within the 30-day time frame, the record indicates that
complainant raised the allegation with an Acting EEO District Manager
on August 11, 1999. By contacting the Acting EEO District Manager,
complainant provided the agency sufficient notice of her allegation
of a settlement breach, and therefore, her allegation was raised in a
timely manner. We now turn to the merits of complainant's breach claim
regarding provision 1.
Upon review, we find that the agency breached provision (1) of
the agreement when it failed to remove the letter of warning from
complainant's file. The record reflects that although the agency had an
affirmative obligation to remove the subject letter from complainant's
files, such action was not taken. Instead, the record contains a copy
of an agency letter to the Department of Labor, dated July 26, 1999,
regarding an OWCP matter. Therein, the agency made express reference to
the letter of warning that is the subject of provision 1, and submitted
a copy of the letter to the Department of Labor, which was identified
as �Exhibit 12.�
Based on the record in this case, we find that the agency's decision
was improper and it is REVERSED. The case is REMANDED to the agency
for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to reinstate the matter that was the subject of the
settlement agreement at the point at which processing ceased. The agency
shall acknowledge to complainant that it has resumed processing this
matter within thirty (30) calendar days of the date that this decision
becomes final.
A copy of the agency's letter of acknowledgment notifying complainant
of the reinstatement of her complaint 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 (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 (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
April 3, 2002
__________________
Date