James O. Bruce, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 21, 2001
01995967_r (E.E.O.C. Jun. 21, 2001)

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