01A13848_r
04-03-2002
Ralph B. Long, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ralph B. Long v. United States Postal Service
01A13848
April 3, 2002
.
Ralph B. Long,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13848
Agency Nos. 1-H-302-0052-00, 1-H-302-0130-99, 1-H-302-0094-99
Hearing Nos. 110-A1-8232X-PD, 110-A1-8233X-PD, 110-A1-8234X-PD
DECISION
By letter dated May 26, 2001, complainant appealed to the Commission for a
determination as to whether the agency properly dismissed complainant's
request for a hearing before an EEOC Administrative Judge (AJ) on
Agency Numbers 1-H-302-0052-00, 1-H-302-0130-99, and 1-H-302-0094-99.
Complainant contends that the conclusion of the AJ and the agency was
improper because the September 28, 2000 settlement agreement between
the parties is �vague and unclear.� The settlement agreement provided
in pertinent part that:
�To be treated fair and equal, the same as all other employees in the
performance of my duties and all other personnel matters.�
�That all Family Medical leave requests that is approved off-duty
intermittently [sic] be continued as per doctor statement instructions
as per all maintenance managers.�
According to the AJ, on February 28, 2001, complainant requested
a hearing. On March 7, 2001, the AJ ordered the agency to produce
the complaint files in these matters. On March 15, 2001, the agency
responded with a copy of the September 28, 2000 settlement agreement
purportedly resolving these cases. On March 22, 2001, complainant was
ordered by the AJ to show cause why the cases should not be dismissed.
Complainant responded on March 30, 2001, that the settlement agreement is
vague and that the agency has not restored his leave. On April 9, 2001,
the AJ issued an Order dismissing complainant's request for a hearing.
The agency did not issue a final order within 40 days of receipt of the
AJ's decision pursuant to 29 C.F.R. � 1614.110; therefore, the AJ's April
9, 2001 Order became the final action of the agency. See 29 C.F.R. �
1614.109(i). We conclude that there was no consideration offered by
the agency in exchange for complainant's withdrawal of his complaints,
and that the settlement agreement is therefore void. In this case, the
Commission will exercise its discretion to order that the complaints in
Agency Numbers 1-H-302-0052-00, 1-H-302-0130-99, and 1-H-302-0094-99
be reinstated from the point processing ceased, as specified in the
Order below. See 29 C.F.R. � 1614.504(c).
The matter is REMANDED for the processing of the complaints in Agency
Numbers 1-H-302-0052-00, 1-H-302-0130-99, and 1-H-302-0094-99 from the
point processing ceased.
ORDER
The agency is Ordered to reinstate complainant's EEO complaints in Agency
Numbers 1-H-302-0052-00, 1-H-302-0130-99, and 1-H-302-0094-99 from the
point processing ceased. The agency shall acknowledge to complainant
that it has resumed processing complainant's complaints within thirty
(30) calendar days of the date that this decision becomes final.
A copy of the agency's letter of acknowledgment notifying complainant
of the reinstatement of his complaints must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (M0701)
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
April 3, 2002
__________________
Date