01A11933
05-15-2001
John M. Gay, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast Area), Agency.
John M. Gay v. United States Postal Service
01A11933
May 15, 2001
.
John M. Gay,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01A11933
Hearing No. 150-AO-8534X
Agency No. 4H330019100
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from a final
agency action dated December 15, 2000 concurring in a decision by an EEOC
Administrative Judge (AJ) dismissing his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
BACKGROUND
In his complaint, complainant alleged that the agency had retaliated
against him, in violation of a non retaliation clause in a settlement
agreement dated June 28, 1999, when on December 11 and 18, 1999, it did
not select him to serve as acting manager of the agency's Bright Station
and Palmetto Lakes facilities in South Florida.
The agency accepted the complaint for investigation. At the conclusion
of the investigation, complainant requested a hearing before an AJ.
The AJ to whom the case was assigned determined that the matter should
be dismissed. In the AJ's view, the exclusive remedy for a claimed breach
of a settlement agreement was to be found in the procedures established
in 29 C.F.R. � 1614.504. The AJ concluded that �an allegation that here
has been a violation of an existing settlement agreement does not create
a new claim or cause of action under the regulations.�
From the agency's order concurring with the AJ's decision, complainant
brings the instant appeal.
ANALYSIS AND FINDINGS
The general proposition is correct that a settlement breach will not
give rise to a new cause of action and must be processed pursuant to
29 C.F.R. � 1614.504. However, � 1614.504(c) creates an explicit
exception to that rule. It provides that �[a]llegations that subsequent
acts of discrimination violate a settlement agreement shall be processed
as separate complaints under � 1614.106 or � 1614.204 as appropriate,
rather than under this section.� Commission precedent establishes that
claims of breach of anti-retaliation clauses are to be processed as
separate complaints. See Bindal v. Department of Veterans Affairs, EEOC
Request No. 05900225 (August 9, 1990) (a complaint which alleges reprisal
in violation of a settlement agreement's "no reprisal" clause is to be
processed as a separate complaint and not as a breach of settlement).
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission REVERSES
the agency's final action and REMANDS the matter in accordance with this
decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the EEOC Miami District
Office for scheduling of a hearing in an expeditious manner. The agency
is directed to submit a copy of the complaint file to the EEOC Hearings
Unit within fifteen (15) calendar days of the date this decision becomes
final. The agency shall provide written notification to the Compliance
Officer at the address set forth below that the complaint file has been
transmitted to the Hearings Unit. Thereafter, the Administrative Judge
shall issue a decision on the complaint in accordance with 29 C.F.R. �
1614.109 and the agency shall issue a final action in accordance with
29 C.F.R. � 1614.110.
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.
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 15, 2001
__________________
Date