01A14323_r
04-10-2002
Bhupinder Wason, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bhupinder Wason v. United States Postal Service
01A14323
April 10, 2002
.
Bhupinder Wason,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14323
Agency No. 4F-913-0014-99
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated May 16, 2001, finding that it was in
compliance with the terms of the April 13, 2000 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) The parties agree to treat each other with mutual respect and to
work together to resolve any future issues.
(2) The parties agree to be open to an exchange of ideas for the purpose
of determining and increasing [complainant's] performance level.
(3) Management will not evaluate [complainant's] performance level by
comparing his performance with that of other carriers.
(4) There will be no reprisal or retaliation due to [complainant's]
EEO activity and entering into this settlement agreement.
On December 16, 2000, complainant requested EEO Counseling alleging that
a breach of settlement occurred when management �caused and created� a
hostile work environment.
In its May 16, 2001 decision, the agency concluded that it did not
breach the April 13, 2000 settlement agreement. The agency noted that
complainant claimed the agreement was breached when he was subjected to
a hostile work environment on November 7, 2000, when:
Supervisor A insisted on loading up complainant's ledge, rather than
letting him sort the mail found on the ledge;
Supervisor A squeezed the ledge with mail;
Supervisor A stood behind complainant when he turned on his flat
case light;
Supervisor A yelled at complainant when he came back from the
accountable case, and told him to keep casing instead of taking care
of the accountables;
Supervisor A stood right behind complainant when he starting casing
his flats;
On November 8, 2000, complainant was asked how much time it would take
to throw the flats and he indicated 30 to 35 minutes. Supervisor A
said �no way� and then stood there, observed complainant, and then had
another Supervisor watch complainant;
When asking the Supervisor why he �was doing this when there had been a
Redress meeting� the Supervisor replied that there is no more agreement.
The agency explained that during this time fourteen employees with
the lowest productivity indicators (office and street expansion),
including complainant, were being monitored for performance related
issues. The agency stated that Supervisor A was responsible for seven
employees, including complainant, and that he monitored these employees
on the dates in question. The agency stated that as the agreement
provided that the parties were to engage in an open exchange of ideas
for improving complainant's performance, Supervisor A made various
suggestions on November 7-8 for eliminating time wasting practices to
improve performance. The agency stated that Supervisor A never stated
there is no more agreement, but only observed complainant's performance
to identify and correct deficiencies. Thus, the agency concluded the
agreement was not breached.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if a complainant
believes the agency has failed to comply with the terms of a settlement
agreement, he may request that the terms of the agreement be specifically
implemented, or, alternatively, that the complaint be reinstated for
further processing. Claims concerning subsequent acts of discrimination,
however, must be processed as separate complaints, not claims of
breach. See 29 C.F.R. � 1614.504(c). Complainant's harassment claim
concerning the agency's observation of him on November 7-8 does not
show that the agency breached the agreement. The Commission finds that
complainant's claim of harassment on November 7-8 should be processed
as a separate complaint of discrimination if complainant so desires.
If complainant wishes to pursue this claim and has not already done so,
then he should contact an EEO Counselor within fifteen days of receiving
this decision. The agency should treat the claim as having been raised
no later than December 16, 2000, the date of his initial claim of breach.
Accordingly, the agency's decision that it did not breach the agreement
is AFFIRMED.
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
April 10, 2002
__________________
Date