0120090317
03-06-2009
Danilo S. Angeles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Danilo S. Angeles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090317
Agency No. 4E-570-0014-07
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 25, 2008, finding that
it was in compliance with the terms of the March 27, 2007 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement only contained one settlement term requiring
action by the agency, other than a confidentiality clause, i.e., a promise
to "directly address issues brought up and address inappropriate behavior
as stated in the zero tolerance policy." In exchange, complainant
withdrew EEO case number 4E-570-0014-07.
By letter to the agency dated August 3, 2008, complainant alleged that the
agency was in breach of the settlement agreement, and requested that it
be declared null and void and his EEO case be reinstated. Complainant
averred that the agency did not implement the settlement agreement.
The FAD, which recounted in part alleged breaches raised orally by
complainant, detailed examples such as all employees not being treated
fairly and equally regarding breaks, not selecting acting supervisors
from a leadership skills bank, gossiping, harassment, and so forth.
Some of these concerns were about how his spouse was treated.
In its September 25, 2008 FAD, the agency concluded that it complied
with the settlement agreement. Generally, it found that it promptly
addressed the matters raised which were covered by the settlement
agreement, and that some matters were not covered by it.
We find that the settlement agreement promise to directly address issues
brought up and address inappropriate behavior as stated in the zero
tolerance policy is too vague to allow a determination as to whether
it was complied with by the agency. See Bruns v. United States Postal
Service, EEOC Appeal No. 01965395, 1997 WL 377836 (June 24, 1997).
We therefore find the settlement agreement is void and unenforceable.
On remand, the agency shall treat the August 3, 2008, notice of breach
as a request for EEO counseling, and counsel complainant and process
the matter in accordance with 29 C.F.R. � 1614.105(b)(1)
et seq.
ORDER
The agency is ordered to reinstate EEO case 4E-570-0014-07 and process it
from the point processing ceased in accordance with 29 C.F.R. Part 1614.
The agency shall treat the August 3, 2008, notice of breach as a request
for EEO counseling, and counsel complainant and process the matter in
accordance with 29 C.F.R. � 1614.105(b)(1) et seq. The agency shall
consolidate the claims raised in EEO case 4E-570-0014-07 with any
formal claims arising out of the August 3, 2008 contact. 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.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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
March 6, 2009
__________________
Date
2
0120090317
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090317