05A20275
04-15-2002
Erskine J. Mabry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Erskine J. Mabry v. United States Postal Service
05A20275
April 15, 2002
.
Erskine J. Mabry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A20275
Appeal No. 01A12567
Agency No. 4-J-604-0053-99
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
The complainant initiated a request to reconsider (RTR) to the Equal
Employment Opportunity Commission (EEOC or Commission) the decision in
Erskine J. Mabry v. United States Postal Service, EEOC Appeal No. 01A12567
(November 6, 2001). EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
Whether the Commission's decision properly determined that the Settlement
Agreement (SA) was not breached by the agency.
BACKGROUND
Complainant initially filed a timely appeal with this Commission from
the final agency decision (FAD), dated March 27, 2001, implementing the
decision of an EEOC Administrative Judge (AJ), dated February 21, 2001.
The AJ had entered a �Decision without a Hearing� finding that the
complainant had not established a prima facie case of discrimination
based on race, color, or reprisal, and that the complainant had not
established discrimination based on disability.
Complainant was employed as a City Carrier (Limited Duty), GS-5, at the
agency's Joliet, Illinois facility. During the relevant time period, his
job hours required him to answer telephones from 5:00 P.M. to 5:30 P.M.,
the last half hour of the complainant's tour. As a result, complainant
was not able to �waive lunch�and leave work early as he preferred to do.
Subsequently, complainant received job hours that did not require him to
work the last half hour of his tour answering phones. However, in the
meantime, complainant had alleged that he was discriminated against on the
bases of race (Black), sex (male), and physical disability (not disclosed
on the form) when he was told that he could no longer waive lunch.
As part of the EEO counseling process the complainant agreed to
participate in the agency's REDRESS mediation program. Thereafter,
the complainant and the agency entered into the SA, which provided that:
�Management has restored waived lunch privileges.� The SA provided that
any alleged breach of the agreement must be reported in writing to the
EEO Office within 30 days of the alleged breach.
On appeal, complainant contended that he was discriminated against when
the agency did not adhere to the SA and the AJ erred in not addressing
the breach of the SA. The Commission found that complainant was not
given his proper appeal rights.
CONTENTIONS ON APPEAL
Complainant contends that the agency discriminated and retaliated
against him when the agency did not adhere to the SA. Further,
complainant contends that the AJ erred in granting summary judgment
for the agency. Also, complainant contends that the breach of the SA
violated the Rehabilitation Act,<1> by denying a reasonable accommodation
to complainant.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit argument that tends to establish that
at least one of the criteria of 29 C.F.R. � 1614.405(b) is met. A RTR
is not a second opportunity for appeal, and the Commission's scope
of review on a RTR is narrow. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS, EEOC
Request No. 05900850 (September 7, 1990). Notwithstanding complainant's
contentions concerning the AJ's decision, the Commission reviewed the
appeal as if the complainant was given the proper appeal rights and
considered the matter as if complainant had alleged noncompliance directly
to the Commission. The Commission found that the SA was not breached
because it would be improper to interpret the reasonable intentions of
the parties to include that the complainant could waive lunch on a daily
basis ad infinitum. Further it did not appear that the postmaster's
policy decision to change the practice of waiving lunch was anticipated
at the time of the SA.
The Commission has held that where an individual bargains for a position
without any specific terms as to the length of service, it would be
improper to interpret the reasonable intentions of the parties to include
employment in that exact position ad infinitum. See Papac v. Department
of Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991);
see also Parker v. Department of Defense, EEOC Request No. 05910576
(August 30, 1991).
We note that complainant contends that the agency discriminated and
retaliated against him by its act of breaching the SA and, that it
violated the Rehabilitation Act, when it terminated the waive lunch
provision of the SA. Complainant is advised that if he wishes to pursue,
through the EEO process, the new reprisal claims he has raised in the RTR,
he shall initiate contact with an EEO counselor within 15 days after
he receives this decision. The Commission advises the agency that
if complainant seeks EEO counseling regarding any new claims within
the above 15-day period, the date complainant filed the RTR in which
he raised these claims with the agency shall be deemed to be the date
of the initial EEO contact, unless he previously contacted a counselor
regarding these matters, in which case the earlier date would serve as
the EEO Counselor contact date. Cf. Alexander J. Qatsha v. Department
of the Navy, EEOC Request No. 05970201 (January 16, 1998).
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A12567 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this RTR.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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 15, 2002
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.