05980227
04-09-2002
Jan Fitzgerald, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Western Area), Agency.
Jan Fitzgerald v. United States Postal Service
05980227
April 9, 2002
.
Jan Fitzgerald,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Request No. 05980227
Appeal No. 01971699
Agency No. 4E-800-1025-95
DECISION ON REQUEST FOR RECONSIDERATION
On December 29, 1997, Jan Fitzgerald (complainant) initiated a request to
the Equal Employment Opportunity Commission (the Commission) to reconsider
the decision in Jan Fitzgerald v. United States Postal Service, EEOC
Appeal No. 01971699 (December 18, 1997).<1> EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. � 1614.405(b). The party requesting
reconsideration must submit written argument or evidence which tends
to establish one or more of the following two criteria: the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or the decision will have a substantial impact on the policies,
practices or operations of the agency. Id. For the reasons set forth
herein, we deny complainant's request for reconsideration. However,
we reconsider the previous decision on our own motion.
BACKGROUND
In the previous decision, the Commission found that the agency did
not breach its settlement agreement with complainant. The record
reveals the following. On August 10, 1995, the parties entered into a
settlement agreement, wherein in exchange for complainant withdrawing her
consolidated complaints, management agreed �to cease and desist from all
forms of harassment because of prior EEO activity.� In a February 8,
1996 letter to an EEO Appeal Review Examiner, complainant informed the
agency that management had breached the settlement agreement because the
harassment did not cease. Complainant requested that her consolidated
complaint be reinstated for processing.<2> The appellate decision
affirmed the agency's determination that the three incidents of alleged
breach constituted subsequent acts of discrimination and should have
been processed as separate complaints.<3>
On request for reconsideration, complainant claims, inter alia,
that on the same day that the agency signed the settlement agreement
(cease and desist harassment), management violated the agreement by
not letting her finish her shift. In addition, complainant argues that
she was demeaned on the workroom floor with loud, abusive language in
front of her peers. Complainant argues that the Station Manager: (1)
refused to provide complainant with a union representative that day;
(2) threatened her because of her union grievance activities; (3) and
allowed a hostile environment to continue after the settlement agreement.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. � 1614.405(b) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that
the Commission's scope of review on a request to reconsider is limited.
Lopez v. Department of Air Force, EEOC Request No. 05890747 (September
28, 1989). Furthermore, a request to reconsider is not �a form of
second appeal.� Regensberg v. United States Postal Service, EEOC
Request No 05900850 (September 7, 1990); Spence v. Department of the
Army, EEOC Request No. 05880475 (May 31, 1988). After a careful review
of the previous decision, complainant's request for reconsideration,
and the entire record, the Commission finds that complainant's request
fails to meet the criteria set forth at 29 C.F.R. � 1614.405(b). In so
finding, we agree with the prior decision and find insufficient evidence
to conclude that the agency breached the settlement agreement entered
into on August 10, 1995. Accordingly, we find that complainant has
failed to provide evidence which would warrant reconsideration of the
appellate decision.
The Commission, however, will reconsider the prior decision on its own
motion. We find that the settlement agreement should be set aside for
lack of consideration. While the Commission is not generally concerned
with the adequacy or fairness of the consideration in a settlement
agreement, when one of the parties to a settlement incurs no legal
detriment, the agreement will be set aside for lack of consideration.
See Morita v. Department of the Air Force, EEOC Request No. 05960450
(December 12, 1997).
In the present case, in exchange for complainant withdrawing her
complaints of discrimination and reprisal, the agency agreed not to
harass complainant on the basis of her prior EEO activity. We find
that this did not confer any benefit to complainant to which she was
not already entitled. The agency was already legally obligated not to
retaliate against her because of her prior EEO activity. Accordingly,
we find that the settlement agreement should be set aside, and that the
agency should reinstate complainant's consolidated complaints at the
point at which processing ceased.
CONCLUSION
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission denies complainant's
request, but reconsiders the previous decision on its own motion.
The decision of the Commission in Appeal No. 01971699 and the final
agency decision are REVERSED, and the case is remanded for processing
in accordance with the ORDER below. There is no further right of
administrative appeal on the decision of the Commission on a Request
to Reconsider.
ORDER
The agency is ORDERED to reinstate complainant's formal consolidated
complaints (Agency Nos. 4E-800-1025-95 and 4E-800-1061-95 which were
consolidated by the agency as Agency No. 4E-8001025-95) at the point
at which processing ceased. The agency shall notify complainant of
the reinstatement of the consolidated complaints within thirty (30)
calendar days of the date this decision becomes final.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation verifying
that the corrective action discussed above has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(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 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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:
_______________________
Frances J. Hart
Executive Officer
Executive Secretariat
April 9, 2002
________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant's consolidated complaint alleged that she was discriminated
against on the bases of sex (female), disability (cumulative trauma
disorder) and retaliation (prior EEO activity) when on November 10, 1994,
and November 23, 1994, she was harassed by her supervisor and not paid
for leave.
3 Specifically, the three incidents of alleged breach included: (1)
management denied complainant a Union-Management Pairs System (UMPS)
meeting and a Steward; (2) management did not allow complainant to
finish working the 1.25 hours remaining in her four-hour shift; and (3)
management changed the starting time of complainant's tour of duty from
7:45 a.m. to 2:00 p.m., after receiving her request for light duty.