0120110148
08-23-2012
Eugene Bledsoe, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Eugene Bledsoe,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120110148
Agency No. 4J-600-0159-06
DECISION
Complainant filed an appeal with this Commission from a letter of determination by the Agency dated November 18, 2009, finding that it was in compliance with the terms of the settlement agreement into which the parties entered.1 See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 16, 2006, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
a) [Complainant] agrees to have his weekly scheduled days off changed from Sunday and Monday to Saturday and Sunday.
b) [Management] agrees to afford [Complainant] the opportunity to be called in on every one of his nonscheduled work days to perform his regularly assigned duties.
By letter to the Agency dated July 7, 2009, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Namely, Complainant alleged that his scheduled days off were never changed and that his supervisor denied him the right of first refusal to work on his nonscheduled days.
In its November 18, 2009 letter, the Agency concluded that it had not breached the settlement agreement. Specifically, the current Postmaster stated that Complainant never approached him about his non-scheduled days being changed. Further, around May 2009, he informed Complainant that there was no overtime needed because mail volume was down and the situation did not warrant bringing any clerks in on their non-scheduled days off. Additionally, express deliveries were now being conducted out of another facility. Thus, there was no overtime work in his regular assigned duties.
Complainant's former Postmaster stated that he was the Evanston Post Office Postmaster for nine months after the settlement agreement, and Complainant never brought to his attention that his schedule was not changed. Further, during his time as Postmaster, Complainant was afforded the opportunity to be called in on his non-scheduled days, but he was not always needed based on the workload and availability of scheduled employees. He noted that the settlement agreement did not state that Complainant would always be called in on his non-scheduled days as it was management's responsibility to make schedule adjustments based on the workload and future projections. As a result, the Agency found that it had complied with the settlement agreement.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he waited in good faith for personnel to contact him and trusted that the schedule change would be forthcoming. The schedule change never officially occurred, and he continued to work his regular schedule of Tuesday through Saturday. Complainant argues that he nevertheless usually chose Monday to work overtime, which was granted until June 8, 2009. Complainant maintains that there is always sufficient work on his nonscheduled Monday with regard to his regularly-assigned duties. Thus, Complainant requests that the Commission find that the Agency breached the settlement agreement.
ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that if the complainant believes that the agency has failed to comply with the terms of a settlement agreement, the complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance. All time limits in 29 C.F.R. Part 1614 are subject to waiver, estoppels and equitable tolling. 29 C.F.R. � 1614.604(c). The settlement agreement at issue advised Complainant of the above time limit, and included the contact information for notifying the Agency of any alleged noncompliance.
As to breach allegation (1), the Commission agrees with the Agency that Complainant should have been aware that his non-scheduled days were not changed by the end of 2006. The record indicates that Complainant did not raise any allegations of breach until his July 7, 2009 correspondence. The Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v. U.S. Postal Serv., EEOC Appeal No. 01A45028 (Nov. 18, 2004); O'Dell v. Dep't of Health and Human Servs., EEOC Request No. 05901130 (Dec. 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. Complainant waited almost three years from the date he knew that his non-scheduled days were not changed to notify the EEO Office of the alleged breach. Thus, the Commission finds that Complainant did not diligently pursue this claim. Additionally, Complainant has failed to provide sufficient justification for extending or tolling the time limit. As a result, the Commission finds that breach allegation (1) was untimely raised.
Regarding breach allegation (2), Complainant stated that he was offered and worked overtime on his non-scheduled Monday until June 8, 2009. The Postmaster affirmed that overtime was cut due to a decrease in mail volume and an order from the Northern Illinois District Office. Additionally, express deliveries were being handled by another facility, and there was no longer a need for overtime in Complainant's regularly-assigned duties.
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 Holley v. Dep't. of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Papac v. Dep't. of Veterans Affairs, EEOC Request No. 05910808 (Dec. 12, 1991); see also Parker v. Dep't. of Def., EEOC Request No. 05910576 (Aug. 30, 1991). In addition, the Commission has held that there is no breach of a settlement agreement "where an individual has been assigned to a position pursuant to a settlement agreement, has held the position for a period of time, and then is excised out of the position because of agency downsizing that was not anticipated at the time of the agreement." Gish v. Dep't of the Army, EEOC Appeal No. 01950923 (Aug. 14, 1995).
Similarly, the Commission finds that it would be improper to interpret the terms of the instant agreement that Complainant would be provided with overtime opportunities forever, notwithstanding changes in the Agency's need for overtime. Here, the record indicates that Complainant was provided overtime opportunities for almost three years until the Evanston Post Office experienced a decline in mail volume and was ordered to eliminate overtime. The Commission finds that this period of almost three years was sufficient time to establish good faith compliance by the Agency with the terms of the settlement agreement. As a result, the Commission finds that the Agency did not breach the settlement agreement.
Accordingly, the Agency's letter of determination finding that it was not in breach of the agreement is AFFIRMED.
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 (Nov. 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 (S0610)
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 (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
August 23, 2012
Date
1 Neither the Commission nor the Agency had record of receiving Complainant's December 18, 2009 appeal. Complainant's current attorney submitted a copy of the original appeal and a sworn affidavit from Complainant's former attorney affirming that it was mailed to both parties on the stated date. The Commission shall therefore consider Complainant's August 4, 2010 resubmission as timely.
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0120110148
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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