0120113202
06-04-2013
Daniel Lopez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Daniel Lopez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120113202
Agency No. 4G-780-0115-08
DECISION
On June 18, 2011, Complainant filed a timely appeal with this Commission from the Agency's Letter of Determination dated May 18, 2011. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
In its Letter of Determination, the Agency found that in a letter to the Agency dated July 1, 2010, Complainant had alleged that the Agency breached a settlement agreement signed between Complainant and the Agency on April 3, 2008. The Agency found that Complainant had previously alleged a breach of this settlement agreement, which the Agency had investigated. Complainant appealed the previous determination of no breach in Lopez v. U.S. Postal Service, EEOC Appeal No. 0120092941 (November 18, 2009). That appellate decision affirmed the Agency's finding that the settlement agreement had not been breached as alleged.
Complainant again alleged breach of the April 3, 2008 settlement agreement, in a letter to the Agency dated July 1, 2010. However, the Agency did not address the new allegations of breach in this letter, which was submitted to the Agency over seven months after the previous appeal decision was issued. The Agency instead referenced the previous appellate decision and notified Complainant that his allegations of breach had already been addressed.
In his appeal, Complainant argued that the Agency had continued to breach the settlement agreement and, in addition to his allegations of July 1, 2010, he cited a number of instances in 2011. The Agency did not specifically address these new allegations, nor submit to the Commission the July 1, 2010, letter containing the new allegations of breach.
We find that in the absence of a file containing the new allegations of breach made on July 1, 2010, and any investigation into those allegations, we cannot determine whether the Agency properly informed Complainant that his allegations had already been addressed in EEOC Appeal No. 0120092941. While it is possible that Complainant has raised allegations which have already been addressed by the Commission, we are unable to determine this from the record before us. Therefore, we VACATE the Agency's determination letter of May 18, 2011, and REMAND the matter to the Agency for further action in accordance with our ORDER below.
ORDER
Within thirty (30) days of the date this decision becomes final, the Agency is ordered to issue a new final letter of determination on the allegations of breach of settlement made by Complainant in his letter to the Agency dated July 1, 2010, and in his appeal letter dated June 18, 2011. The Agency shall advise Complainant of his rights of appeal to the Commission.
A copy of the Agency's letter of determination and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 4, 2013
Date
2
0120113202
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113202