01983054
06-07-1999
Manuel R. Muro, Sr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Manuel R. Muro, Sr. v. United States Postal Service
01983054
June 7, 1999
Manuel R. Muro, Sr., )
Appellant, )
) Appeal No. 01983054
v. ) Agency No. 4-H-330-0049-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On March 7, 1998, appellant filed a timely appeal with this Commission
from a February 26, 1998 final agency decision. In its final decision,
the agency determined that it did not breach the settlement agreement.
See 29 C.F.R. ��1614.504, .402(a); EEOC Order No. 960, as amended.
The record contains an EEO Settlement Agreement, fully executed
on February 20, 1997, which states as follows: the [Senior Training
Specialist] stated that [appellant] will continue to perform his duties
as a D.I.E. [Driver Instructor Examiner] in a professional manner.
He [appellant] will be allowed to communicate with [Senior Training
Specialist] and she will deal with him as with all other employees in
training. [Appellant] will be allowed to place plaques only in the area
of the wall where his modular furniture is located and the area inside
his modular furniture. In exchange for the agreement, appellant agreed
to withdraw his complaint.
EEOC Regulation 29 C.F.R. �1614.504 provides that any settlement agreement
knowingly and voluntarily agreed to by the parties shall be binding on
both parties. The regulation further provides that if the complainant
believes that the agency failed to comply with the terms of the settlement
agreement, the complainant shall notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point that processing ceased. The agency shall resolve the
matter and respond to the complainant, in writing.
Upon review, the commission is unable to determine the propriety of the
agency's decision. In its final decision, the agency stated that on
March 14, 1997, appellant gave notice of an alleged breach. The agency,
however, failed to submit the notice of the breach. Moreover, the
agency's final decision is not entirely clear regarding what specific
provisions of the settlement agreement appellant alleged were breached.
Also, in its final decision, the agency references, without specifically
identifying, Attachments 1, 2, and 3 and an Affidavit A. While it
appears from the agency decision that Attachment 2 refers to the
Settlement Agreement, it is not entirely clear what Attachments 1 and 3
and Affidavit A are and there are no documents in the record identified
as Attachments 1, 2 or 3 and Affidavit A. The agency is reminded that
it has an obligation to develop adequate factual records and to issue
decisions that are consistent with acceptable legal standards and to
explain the reasons for its decisions. See 29 C.F.R. �1614.104(b);
Rochelle v. Department of the Army, EEOC Appeal No. 01964205 (January
3, 1997); Delalat v. Department of the Navy, EEOC Appeal No. 01963847
(February 11, 1997). Therefore, we will remand this matter.
Consistent with our discussion herein, the agency's final decision is
VACATED and the matter is REMANDED to the agency for further processing
in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
a. The agency shall conduct a supplemental investigation to develop an
adequate factual record on the issue of an alleged breach and shall
include all supporting documentation, including the gathering of any
evidence relevant to a determination of appellant's breach allegation,
including appellant's notice of breach.
b. The agency shall complete its supplemental investigation and issue a
new final agency decision within 30 (thirty) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved.
If the agency again determines that it has not breached the settlement
agreement, the new final agency shall address each allegation of breach,
clearly identify the evidence relied upon to support its findings and
provide appropriate legal analysis. All documents relied upon in the
new final agency decision shall be clearly identified and made a part
of the agency record.
A copy of the report of supplemental investigation, including all
supporting documentation, and a new final agency decision must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
June 7, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations