01974463
06-14-2000
Henry E. Leinen, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Henry E. Leinen v. United States Postal Service
01974463
June 14, 2000
Henry E. Leinen, )
Complainant, )
)
v. ) Appeal No. 01974463
) Agency Nos. 5-N-1053-91
William J. Henderson, ) 5-N-1065-92
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. The appeal is accepted by the Commission in
accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).<1>
ISSUE PRESENTED
The issue presented is whether the agency is in breach of two settlement
agreements.
BACKGROUND
This case has had a somewhat torturous procedural history, including
two prior appeals, the decisions in which are incorporated herein by
reference. Henry E. Leinen v. United States Postal Service (Leinen I),
EEOC Appeal No. 01920246 (January 12, 1992), and Henry E. Leinen v. United
States Postal Service (Leinen II), EEOC Appeal No. 01954723 (August
30, 1996). Briefly stated, complainant, a former agency employee,
filed two complaints with the agency. Complaint No. 5-N-1053-91,
which was a formal complaint, alleged that the agency discriminated
against complainant based on disability and reprisal when: (1) he was
issued a 14-day suspension for failure to perform duties as assigned
(absence without leave) on September 12, 1990 (later reduced to a
Letter of Warning; (2) he received a 14-day suspension for unacceptable
behavior on December 6, 1990 (later reduced to a one-day suspension);
(3) on September 12, 1990, and May 23, 1991, management removed mail
from his case; (4) on an on-going basis, he was denied training under
the 204-B (supervisory) training program; and (5) on December 6, 1990,
he was required to attend an Employee Assistance Program meeting which
was conducted in a public restaurant. Complaint No. 5-N-1065-92, which
was an informal complaint, alleged that the agency discriminated against
complainant based on disability and reprisal when: (1) in violation
of a previous settlement agreement (Agreement 1, referenced below) the
Superintendent, Postal Operations, failed to maintain a normal working
relationship with him; and (2) on July 25, 1991, the Supervisor, Mails
and Delivery, disclosed matters concerning a previous settlement agreement
(Agreement 1, referenced below) to a union steward in violation of the
agreement's confidentiality provision.
Both complaints were settled. Complainant subsequently alleged that the
agency violated both settlement agreements. The settlement agreement for
Complaint No. 5-N-1053-91 (Agreement 1) provided: (1) that the agency
would provide complainant with 204-B training; (2) that complainant
would receive a one-day Supervisor Training System (STS) class; and
(3) that complainant would receive certain supervisory training and a
one-week detail, followed by an evaluation. The settlement agreement for
Complaint No. 5-N-1065-92 (Agreement 2) provided that complainant would
be provided with two one-week STS classes, one in the spring of 1992
and one in the fall of 1992. On the latter of the two prior appeals,
the Commission issued a decision requiring the agency to investigate the
breach allegations and to issue a final agency decision (FAD) thereon.
Leinen II, EEOC Appeal No. 01954723.
The agency subsequently issued a FAD in which it acknowledged that it had
not complied with all of the provisions of the settlement agreement.<2>
More specifically, the agency found no evidence that complainant had
been provided with the 204-B training required by Agreement 1, and
that complainant was not provided with the second STS class required
by Agreement 2 because STS as a whole was discontinued pending the 1992
restructuring of the agency. The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations provide that any settlement agreement
knowingly and voluntarily agreed to by the parties shall be binding on
both parties. 29 C.F.R. � 1614.504(a). The regulations further provide
that if the complainant believes that the agency has failed to comply
with the terms of a settlement agreement, the complainant shall notify
the Director of Equal Employment of the alleged non-compliance with the
settlement agreement. Id. The complainant may request that the terms
of the settlement agreement be specifically implemented or request that
the complaint be reinstated for further processing from the point at
which processing ceased under the terms of the settlement agreement. Id.
In the instant case, regardless of whether complainant is still employed
by the agency, or why the agency failed to provide promised relief,
it is clear that the agency is in breach of both settlement agreements.
What is somewhat less clear, in light of the fact that complainant is no
longer employed by the agency, is the appropriate course of action to
be taken now. The agency cannot provide training to an individual who
is no longer in its employ. The fact that complainant no longer works
for the agency has also caused most of the issues of his complaints to
become moot, in that by severing his employment with the agency he has
removed himself from whatever effects the agency's actions may have had
on him, and there is no relief that may be granted.<3> See County of Los
Angeles v. Davis, 440 U.S. 625 (1979). There is one exception, however.
In Complaint No. 5-N-1053-91, complainant alleged discrimination with
regard to a 14-day suspension, later reduced to one day, which was issued
on December 6, 1990. This issue is not moot because if complainant were
to prevail, he would be entitled to back pay and benefits for the one
day that he was suspended. Accordingly, the Commission will remand for
processing, from the point at which processing ceased, the sole claim of
whether the agency discriminated against complainant based on disability
and reprisal when, on December 6, 1990, he was issued a 14-day suspension,
later reduced to a one-day suspension.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
REVERSE the final agency decision and to REMAND the above-specified
claim for processing.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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:
June 14, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________________ ________________________
Equal Employment Assistant Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The analysis performed by the agency in the FAD was wholly inapposite to
the breach of settlement claims which were remanded for consideration.
Instead of analyzing whether it was in breach of the settlement
agreements, the agency analyzed whether complainant had established that
its failure to provide certain promised relief was the result of unlawful
discrimination. The agency's finding of no discrimination therefore is
tantamount to a finding of no breach, and will be treated accordingly.
3The events at issue herein transpired before compensatory damages became
available in federal sector complaints processing, and in any event,
no claim for compensatory damages was ever raised.