01A32652_r
08-08-2003
Charles J. Threatt, II, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles J. Threatt, II v. United States Postal Service
01A32652
August 8, 2003
.
Charles J. Threatt, II,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32652
Agency No. 4F-926-1175-96
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated March 5, 2003, finding that it was in
compliance with the terms of a June 18, 1996 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The June 18, 1996 settlement agreement provided, in pertinent part, that:
(1) It is agreed that management agrees to accommodate the counselee
as pertaining to his need for his Sabbath (Saturday) off within the
scope of 29CFR1614 and any and all Labor/Management agreements-national
and local.<1>
By letter dated February 21, 2003, complainant alleged that the agency
breached provision (1) of the settlement agreement. Specifically,
complainant alleged that the agency failed to accommodate a request not
to work on Saturdays, resulting in being charged AWOL and a suspension
of seven days. Complainant further alleged that he and his family were
subjected to �harassment and inhuman treatment� when the agency called
his home on a Saturday morning and angrily stated to his mother-in-law
that complainant better report to work that day.
In its decision, the agency found no breach. The agency stated that VOMA
positions throughout the district, including complainant's position, had
been abolished and that as a result, complainant became an unassigned
regular employee. The agency stated that it was the determination of
management that complainant was given two opportunities to accommodate
his religious beliefs. First, the agency stated that complainant was
offered an opportunity to take a mechanic test for the Vehicle Maintenance
Facility (VMF) but that complainant declined the opportunity because it
would have given him Saturday and Sunday nonscheduled days. Second, the
agency stated that complainant was told that management would attempt to
get him a transfer to the Loma Linda Post Office. Complainant, however,
declined the proposal after learning that the Loma Linda Post Office is
closed on Saturday and Sunday.
On appeal, complainant's counsel submits a copy of his letter to the
Manager, EEO Distribute Resolution dated April 25, 2003, concerning
subsequent acts of discrimination.
Upon review of the record, we find that the agency decision in the
present complaint should be vacated. 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). In the
present case, the Commission determines that the claims as articulated
by complainant herein allegedly occurred following the execution of
the settlement agreement, and should be processed as a subsequent claim
of discrimination.
Accordingly the agency's decision that it complied with the settlement
agreement is VACATED and this matter is REMANDED for further processing
in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights 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
August 8, 2003
__________________
Date
1The settlement agreement also provides that the union will be consulted
concerning the change of complainant's schedule; and that if two
suspensions are not settled to his satisfaction, then complainant has
the right to reopen the cases for further processing.