01995967_r
06-21-2001
James O. Bruce, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James O. Bruce v. United States Postal Service
01995967
June 21, 2001
.
James O. Bruce,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995967
Agency No. 5N-0060-88
DECISION
Complainant timely appealed the agency's decision that denied his claim
that the settlement agreement entered into between the parties had
been breached.
BACKGROUND
The record reveals that on September 30, 1988, complainant and the
agency entered into a settlement agreement regarding a previously filed
discrimination complaint, which provided, in pertinent part, that in
exchange for complainant voluntarily withdrawing his complaint:
4.
Hereby,
management
agree[s]
to
observe
and
to
adhere
to
the
job
description
limitations
stipulated
on
the
Reemployment
Contract
signed
by
[complainant]
on
September
18,
1988,
and
soon
to
be
implemented.
5. Hereby, management reaffirm[s] the Postal Service Policy to
provide [complainant] with a fair, safe and harassment-free work
environment upon [his] return for duty as per the aforementioned
Reemployment Contract.
The Reemployment Contract provided in part that complainant's duties and
responsibilities would include parking lot observation, duplicating as
necessary for the tour office, a courier in situations when information
should be delivered as soon as possible, answering the telephone, and
other duties as assigned within his medical restrictions.
Complainant claimed in January 1996, that the agency breached the
settlement agreement because he was subjected to harassment and
his rehabilitation position was not in full compliance with the law.
The agency determined that it had not breached the agreement. Complainant
filed an appeal with the Commission.
In James O. Bruce v. United States Postal Service, EEOC Appeal
No. 01964387 (January 15, 1997), the Commission found that complainant
failed to establish that the agency breached the provision of the
settlement agreement dealing with harassment. The Commission found no
evidence that the agency acted negligently or in bad faith in its efforts
to protect complainant from harassment. With regard to complainant's
claim that the agency breached the fourth provision, the Commission
found that the agency decision did not address how the stipulations of
the reemployment contract were met in assigning complainant to the scale
monitor and communications center positions. The Commission therefore
vacated the agency's finding that no breach occurred and remanded the
matter to the agency to supplement the record and issue a new decision.
By decision dated March 24, 1997, the agency determined that the
medical restriction and position requirements in the scale monitor
and/or communication positions did not exceed the medical restrictions
as outlined in the 1988 reemployment contract. Complainant filed an
appeal with the Commission.
In James O. Bruce v. United States Postal Service, EEOC Appeal
No. 01973831 (July 27, 1998), the Commission found that the agency failed
to comply with our previous decision. The Commission found that the
agency decision failed to address whether the job duty specifications of
the settlement agreement were satisfied by complainant's assigned duties.
The Commission therefore vacated the agency decision and remanded the
matter for further processing. The Commission ordered the agency to
investigate whether it provided complainant the specified duties of
parking lot observation, tour office duplicating, courier work, and
answering the telephone from January 1996 to the date of the agency's
investigation.
Complainant stated by affidavit that from January 1996 - April 1996, his
only duty was that of a scale monitor. Complainant stated that in April
1996, he was assigned to the communications room to answer the telephones
when the regular clerk is unavailable. According to complainant,
he only monitored the scales and did parking lot observation prior to
his assignment to the communications room. A supervisor stated in her
affidavit that the parking lot observation duties were discontinued
in September 1995. The supervisor stated that since January 1996,
complainant assists with duplicating when the regular clerk falls behind,
and complainant also answers the telephone. According to the supervisor,
complainant answers the telephone for eight hours. A manager stated
in her affidavit that complainant answers occasional telephone calls,
makes copies of documents, and looks up information on seniority and
vacation postings.
By agency decision dated July 1, 1999, the agency determined that
it complied with the terms of the settlement agreement. The agency
determined that the parking lot observation duties were discontinued in
September 1995. According to the agency, since January 1996, complainant
assists with duplicating when the regular clerk falls behind and he also
answers the telephone for eight hours. The agency noted that by letter
dated February 18, 1998, complainant's physician was advised that many
of the duties in the 1988 job offer were obsolete and the only duties
that remain are the telephone duties. The agency also determined that
complainant raised a claim concerning not being provided with productive
work within his medical limitations in Agency No. 1F-951-1026-96, filed
on April 6, 1996. The agency noted that it dismissed that complaint and
that complainant did not appeal its dismissal. The agency determined
that the instant matter raised the same issue that was previously decided
by the agency in Agency No. 1F-951-1026-96.
On appeal, complainant maintains that the agency is not providing
him with the duties specified in the 1988 agreement. Complainant also
disputes the agency's determination that he abandoned his claim in Agency
No. 1F-951-1026-96. Complainant states that matter is to be heard before
an EEOC Administrative Judge.
In response, the agency asserts that complainant has been provided work
within his medical restrictions which are commensurate with the duties
assigned to other similarly situated employees. The agency acknowledges
that complainant did appeal its decision in Agency No. 1F-951-1026-96, and
that this matter is scheduled for a hearing before an EEOC Administrative
Judge.
Upon review of the record, we find that complainant has not established
that the agency breached the settlement agreement. The record
indicates that complainant was assigned parking lot observation
duties until September 1995. Complainant has been assigned duplicating
responsibilities and he frequently has been assigned telephone answering
duties. The record also indicates that complainant has performed duties
involving a scale monitor. The agency stated that many of the duties in
the 1988 reemployment contract have become obsolete and that the only
duties that remain are the telephone duties. We find that in light of
the fact that the settlement agreement has been in effect since 1988,
it is not unreasonable that certain job duties became obsolete over
this period of time. Therefore, the fact that certain duties are
no longer assigned to complainant does not establish a breach of the
settlement. Complainant is still responsible for answering the telephone.
Complainant has not shown that certain duties he previously performed
are still relevant rather than obsolete. We find that complainant has
not demonstrated that the agency breached the settlement agreement.
Accordingly, the agency's decision that no breach occurred was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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 (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
June 21, 2001
__________________
Date