01a10450
03-19-2001
Joseph Pelton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joseph Pelton v. United States Postal Service
01A10450
March 19, 2001
.
Joseph Pelton,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10450
Agency No. 4G-752-0264-97
DECISION
On August 17, 2000, complainant filed the present appeal with the
Commission alleging that the agency had breached the settlement agreement
entered into by the parties.
Complainant and the agency entered into a settlement agreement on March
24, 1999.<1> The settlement agreement provided, in pertinent part, that:
(1) [Complainant] will be paid the difference between his Level 6 salary
and the salary of a Level 7 Maintenance Mechanic from February 10, 1997,
to July of 1998, when he was promoted to the Level 7;
(2) The Agency will also pay [complainant's] doctor bill in the amount
of One Hundred and Fifty-Two dollars and Twenty cents ($152.20); and
(3) [Complainant's] seniority as a Maintenance Mechanic will be back-dated
to be made effective as of February 10, 1997.
By letter to the agency dated June 11, 1999, complainant alleged that the
agency was in breach of the settlement agreement, and requested that the
agency specifically implement the terms of the agreement. Specifically,
complainant alleged that the agency failed to pay the agreed upon
difference in salary in compliance with provision (1) of the agreement.
The agency did not respond to complainant's breach allegation.
The record reveals that complainant sent another letter to the agency
dated April 26, 2000, again alleging that the agency was in breach of
the March 24, 1999 settlement agreement. In this letter, complainant
acknowledged that he had received the appropriate pay in accordance with
provision (1) of the agreement; however, he stated that the agency failed
to pay the doctor's bill in accordance with provision (2) and failed to
retroactively apply complainant's seniority as stated in provision (3).
The record contains no evidence that the agency responded to complainant's
breach allegation.
Given that there is no evidence in the record from which we can determine
whether the agency has complied with provisions (2) and (3) of the March
24, 1999 settlement agreement, we remand the case back to the agency
for an investigation.
Accordingly, complainant's breach of settlement claim is REMANDED to
the agency for further action in accordance with the Order below.
ORDER
The agency is ORDERED to conduct an investigation and to provide the
following:
The agency shall supplement the record with documentation showing whether
the agency has complied with provision (2) of the settlement agreement
(e.g., a copy of a check issued to complainant's doctor).
The agency shall supplement the record with documentation showing whether
the agency has complied with provision (3) of the settlement agreement.
Thereafter, the agency shall issue a decision on whether the
agency breached provisions (2) and (3) of the settlement agreement.
The supplemental investigation and issuance of the final decision must be
completed within 30 calendar days of the date this decision becomes final.
A copy of the decision must be submitted to the Compliance Officer,
as referenced herein.
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
March 19, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The terms of the settlement agreement are reflected in a transcript of
a hearing held before an EEOC Administrative Judge.