01985922
03-31-2000
Paula Scott, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Paula Scott v. United States Postal Service
01985922
March 31, 2000
Paula Scott, )
Complainant, )
)
v. ) Appeal No. 01985922
William J. Henderson, ) Agency Nos. 1-D-211-1008-94
Postmaster General, ) 1-D-211-2592-93
United States Postal Service, ) Hearing Nos. 120-94-5832X
Agency. ) 120-94-5849X
____________________________________)
DECISION
On July 28, 1998, complainant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated July 14, 1998, finding
that it was in compliance with the terms of the August 1, 1996 settlement
agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to as
EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that:
. . . .
(3) The Agency agrees to offer, and the Complainant agrees to accept,
a position at the Incoming Mail Facility (IMF) of Distribution Clerk,
PS-5, part-time flexible, Grade 5, Step L, Tour I, start time 2300,
end time 0730, starting salary, including COLA, at $17.34/hour.
. . . .
(9) Should a dispute arise regarding implementation of this Agreement,
it is expressly agreed that the Complainant is restricted to seeking
enforcement of such Agreement, and that she may not seek to rescind
such Agreement.
. . . .
(12) In executing this Agreement, both parties state that they have read
the Agreement, and that they fully understand and agree to its provisions.
(13) The Agreement embodies the entire agreement between the two parties
hereto. There are no promises, terms, conditions or obligations other
than those contained herein.
By letter to the agency dated April 24, 1998, complainant alleged that
the agency breached the settlement agreement when it failed to negotiate
in good faith during settlement negotiations and misrepresented many
material facts. In the April 24, 1998 letter alleging noncompliance,
complainant specifically requested that the agency re-open her case in
order to have the issues regarding seniority and job placement revisited
by an EEOC Administrative Judge (AJ). Complainant cited several
instances of misrepresentation and breach. Specifically, complainant
alleged that the agency told her that there was no light/limited duty
assignment at the IMF; however, she claims that she later learned that
there were people holding limited/light duty assignments at the IMF.
Also, complainant stated that both the attorney for the agency and the
Labor Representative promised complainant that it would take only six
months for her to become a Full-Time Regular (FTR) employee again if
she were to accept a position at the IMF. Complainant stated that she
reported to the IMF on October 25, 1995, however, she was not promoted
to a full time employee until April 1998. Finally, complainant stated
that despite the agency's representation that in August 1995, it had
contacted individuals complainant identified as interested in a swap,
on November 6, 1995, complainant discovered that the agency did not
pursue the actions it claimed to have taken regarding the swap.
In its July 14, 1998 FAD, the agency concluded that it did not breach
the terms of the settlement agreement.
On appeal, and in support of her position to vacate that portion of
the settlement agreement pertaining to the issue of seniority status,
complainant identifies four areas of alleged agency misrepresentation.
First, complainant states that despite their contentions during
negotiations, union and management could have allowed her to transfer
to the IMF with her seniority intact. Complainant points to the fact
that in 1996, city zones (zip codes) were transferred from the IMF to
the GMF. In addition, complainant relies on the 1994 Contract between
the agency and the union to support her contention. Second, complainant
states that the agency did not timely pursue the possibility of allowing
complainant a mutual swap in order to allow her to retain her seniority.
Third, complainant contends that despite the assertions of the agency
during negotiations, she later learned that the IMF did have workers in
a light duty status, who received accommodations for various injuries.
Finally, complainant claims that the agency delayed in making her a
full-time employee which made it difficult for her to bid on positions.
In response to complainant's appeal, the agency asserts that
complainant's appeal was untimely since she failed to notify the agency
of the alleged noncompliance within thirty (30) days of learning of the
alleged noncompliance. Specifically, the agency claims that with regard
to her allegation that she was not converted to full-time status within
six months of commencing work at IMF, she clearly knew about the alleged
noncompliance long before she filed her request to reopen. In addition,
the agency states that with regard to her allegations concerning IMF
employees willing to switch jobs, she knew of this in November 1995,
but did not allege noncompliance until 1998. Finally, the agency notes
that with regard to complainant's contentions concerning the light duty
assignments, she relies on events that occurred in 1997; therefore she
did not raise her allegations of noncompliance in a timely manner.
In addition, the agency argues that even if complainant's request
to reopen is considered timely filed, the agency did not breach the
settlement agreement.
Volume 64 Fed. Reg. 37,644, 37,660 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.504(a)) provides that
if the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or decision, the complainant shall
notify the EEO Director, in writing, of the alleged noncompliance within
30 days of when the complainant knew or should have known of the alleged
noncompliance.
The Commission finds that the first time complainant raised the breach
allegations in writing per the agreement and EEOC Regulation 29 C.F.R. �
1614.504(a), was on April 24, 1998, which was more than thirty days after
complainant knew or should have known of the alleged breach. Complainant
has not claimed that she was not reasonably aware of the breach until
thirty days or less before she raised the breach allegation in April 1998.
In her request to reopen, complainant alleges that she was not converted
to full-time status within six months of her transfer to IMF. The record
reveals that complainant was transferred to IMF on October 25, 1996,
and consequently learned that she had not been converted to full-time
status within six months of her transfer to IMF on or around April
25, 1997. In addition, the record reveals that complainant learned of
the agency's alleged failure to pursue a mutual swap in November 1995,
prior to the conclusion of negotiations. Thus, the Commission agrees
with the agency that by waiting until April 1998, complainant failed to
timely raise the breach allegations. Because of our disposition we do
not address the agency's alternative argument that the agency did not
breach the agreement.
Accordingly, the agency's decision is AFFIRMED for the reasons set
forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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. 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. If you
file a request to reconsider and also file a civil action, 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:
March 31, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
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 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.