01996767
10-31-2001
Jack B. Wiener, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jack B. Wiener v. United States Postal Service
01996767, 01A14214
October 31, 2001
.
Jack B. Wiener,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01996767, 01A14214
Agency Nos. 1F-901-0286-97, 1F-901-0041-01
DECISION
Complainant filed two timely appeals with this Commission from an agency
decision dated September 12, 1999, and a decision dated June 1, 2001.
Complainant filed a formal complaint (Agency Case No. 1F-901-0286-97)
on September 6, 1997, in which he alleged that he was subjected to
discrimination on the bases of race (White), color (white), religion
(Hebrew), age (D.O.B. 6/19/38), disability (degenerating disc), and
prior EEO activity when the agency changed complainant's off days from
Saturday/Sunday to Monday/Tuesday because of his light duty status.
The record reveals that complainant's complaint reached an EEOC
Administrative Judge (AJ). By letter dated May 26, 1999, the AJ
determined that complainant's complaint concerned a breach of settlement
agreement claim and not a separate EEO complaint and therefore the AJ
remanded complainant's complaint to the agency for further processing
pursuant to 29 C.F.R. � 1614.504.
The record reveals that the parties entered into a settlement agreement
dated July 1, 1992. The settlement agreement provided, in pertinent
part, that:
This agreement is settled to stipulate the employee [complainant] is
removed from Crenshaw scheme. He is being re-assigned to WK CT No. 11
with Sat/Sun off days. This will remain in effect until such time posted
makes another adjustment. At that time reasonable accommodation will
be made again.
By letter to the agency dated June 3, 1999, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that in September 1997, the agency changed his days
off to Monday/Tuesday, in violation of the agreement.
The agency issued a decision dated August 12, 1999, finding that it was in
compliance with the terms of the July 1, 1992 settlement agreement into
which the parties entered. The agency stated that on November 14, 1992,
complainant was adjusted under reasonable accommodations Article 13 to
have the Crenshaw scheme assignment with Monday/Tuesday non-scheduled
days. The agency stated that from January 1, 1993, to July 5, 1997,
complainant's off days remained Saturday/Sunday unofficially until skill
assignment need was reintroduced with an effective date of July 5, 1997.
The agency stated that on June 27, 1997, complainant was issued official
notification that his off days were being changed to Monday/Tuesday under
Article 13 reasonable accommodations. The agency concluded that it did
not breach the July 1, 1992 agreement.
The record reveals that complainant filed a formal complaint (Agency Case
No. 1F-901-0041-01) dated April 5, 2001, in which he alleged that he
was subjected to discrimination on the bases of race (White), religion
(Hebrew), and disability (degenerative disc) when on or about December
2, 2000, complainant became aware that a supervisor's days off had been
changed to accommodate attendance at religious service while complainant
has been denied such accommodation.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for stating the same claim
that is pending before or has been decided by the agency or Commission.
The agency noted that the present complaint involved a claim that the
agency failed to afford complainant a religious accommodation when it
denied him Saturday/Sunday days off. The agency stated that complainant
entered into a settlement agreement in July 1992, in which his days off
were changed to Saturday/Sunday. The agency stated that in July 1997,
when complainant's off days were changed to Monday/Tuesday, he brought
the matter to the attention of the EEO Office and ultimately filed a
formal complaint on September 6, 1997 (Agency Case No. 1F-901-0286-97).
The agency stated when the AJ remanded the case for processing as a breach
of settlement case, it subsequently issued a decision finding that the
agency had not breached the agreement. Thus, the agency claimed that
the present claim concerning the denial of Saturday/Sunday days off as
a religious accommodation is an identical claim that has been decided
by the agency and is currently pending before the Commission (Agency
Case No. 1F-901-0286-97).
At the outset, we note that in Agency Case No. 1F-901-0286-97, we find
that in challenging the agency's action of changing his days off from
Saturday/Sunday to Monday/Tuesday, complainant alleged both that the
agency breached the July 1, 1992 settlement agreement, and that the
agency committed a subsequent act of discrimination when it denied
him a reasonable accommodation. With regard to the agency's decision
regarding the July 1992 settlement agreement, we find that the agency
properly determined that it did not breach the agreement. The length of
time complainant was accommodated with Saturday/Sunday days off indicates
"substantial compliance" on the part of the agency. See generally Buckley
v. United States Postal Service, EEOC Appeal No. 01903564 (September 17,
1990), request to reopen denied, EEOC Request No. 05910082 (April 4,
1991). The record indicates that complainant was given Saturday/Sunday
days off until July 5, 1997, a period of approximately five years.
Additionally, there is no evidence in the record to indicate that the
agency entered into the settlement agreement in bad faith. Based on
the foregoing, we find that the agency complied with the terms of the
settlement agreement.
With regard to the agency's decision in Agency Case No. 1F-901-0041-01,
we find that the agency improperly dismissed this complaint for stating
the same claim pending before or previously decided by the agency or
Commission. In this complaint, complainant alleged that he was subjected
to discrimination when the agency failed to accommodate his attendance
at religious services. In Agency Case No. 1F-901-0286-97, as discussed
above, although complainant alleged that he was discriminated against when
he was denied a reasonable accommodation to attend religious services,
the agency decision dated August 12, 1999, only addressed the breach
of settlement claim. Thus, the agency improperly dismissed Agency Case
No. 1F-901-0041-01, for stating the same claim previously decided by the
agency or Commission. Upon review, the Commission finds that complainant
unsuccessfully attempted by letter dated June 3, 1999, to raise the
issue of the agency's alleged discriminatory failure to grant him a
reasonable accommodation to attend religious services in September 1997.
The Commission views complainant's April 5, 2001 formal complaint as
providing additional evidence in support of his claim that the agency
discriminatorily failed to provide him a reasonable accommodation.<1>
Therefore, the Commission remands this claim to the agency for further
processing as a complaint of discrimination in accordance with the
Order below.
Accordingly, the agency's decision in Agency Case No. 1F-901-0286-97,
that it did not commit a breach of settlement agreement is AFFIRMED.
The agency's decision dismissing Agency Case No. 1F-901-0041-01,
is REVERSED and the complaint is REMANDED for further processing in
accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 a
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 (K0501)
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 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 (M0701)
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 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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
October 31, 2001
__________________
Date
1The Commission does not address in this
decision whether such additional evidence actually supports the claim
of discrimination. The Commission only finds that such evidence was
submitted to the agency in the form of a complaint for such a purpose as
supporting complainant's claim that he was disriminatorily not reasonably
accommodated.