0120082999
12-03-2008
Patrick D. Gammill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patrick D. Gammill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082999
Agency No. 4G780033999
DECISION
On June 23, 2008, the complainant notified the Commission that the agency
allegedly breached an August 5, 1999 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that the agency
would:
(3) Establish a weekly labor-,management meeting of no less than one
hour per week unless mutually agreed upon. In the event of unforeseen
or emergency circumstance which cause the cancellation of the meeting,
another meeting will be scheduled for the next immediately available
opportunity, not to exceed 7 days. One steward and one manager will
minimally attend or both stewards and two managers. If issues arise
that require station manager's decision the manager will attend the next
meeting.
In a copy of an appeal form, complainant checked that he was alleging
a breach of settlement agreement and that the agency was in violation
of the Order in Appeal No. 01A20540 (February 22, 2002).1 Complainant
stated "I hereby file a breach of settlement" and states that meetings
have not been held regularly.
EEOC Regulation 29 C.F.R. � 1614.514(a) provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, the complainant shall notify the EEO director in
writing of the noncompliance.
In this matter, we note that instead of notifying the agency of
the alleged breach, complainant prematurely appealed the matter to
the Commission. We further note that the agency has not responded to
complainant's claims and there is insufficient evidence in the record
to ascertain whether the agency breached the settlement agreement.
Accordingly the Commission remands the matter to the agency for further
processing as set forth below.
ORDER
The agency is ordered to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall make a written request for complainant to provide a
written statement detailing the specific basis of his breach claim.
Complainant shall have fifteen (15) calendar days to respond to the
agency in writing.
Thereafter the agency shall issue a final decision addressing
its compliance with the settlement agreement, with appeal rights
to the Commission. The agency shall supplement the record with all
documentation, including affidavits, pertaining to the alleged breach. The
supplemental investigation and issuance of the final decision must be
completed within forty-five (45) calendars days of the date this decision
becomes final.
A copy of the final decision must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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)
(1994 & Supp. IV 1999). 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 (M0408)
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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 3, 2008
__________________
Date
1 In Appeal No. 01A20540, the Commission found the agency was not in
compliance with the same terms and specifically ordered the agency to
resume the weekly meetings.
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0120082999
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082999