Robert Dimond, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 13, 2001
01991249_r (E.E.O.C. Dec. 13, 2001)

01991249_r

12-13-2001

Robert Dimond, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Robert Dimond v. United States Postal Service

01991249

December 13, 2001

.

Robert Dimond,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01991249

Agency No. 5S-1000-93

DECISION

Complainant filed a timely appeal from the agency's final decision not

to reinstate his complaint of unlawful employment discrimination that

the parties had settled. See 29 C.F.R. 1614.402; 29 C.F.R. 1614.504(b);

and 29 C.F.R. 1614.405.

The record reveals that complainant and the agency entered into a

settlement agreement on December 30, 1994. The settlement agreement

provided, in relevant part:

A lump sum payment of $50,000.00, net after taxes pursuant to the

terms of the stipulation of record entered December 15, 1994;

Reasonable attorney fees will be paid, which will include gross receipt

tax, at $110.00 an hour;

The Federal Tort Claim will not be effected (sic);

Payment will be made between 30 and a maximum of 60 days from December

15, 1994. Interest will accrue if not made within 60 days.

By letter dated August 1, 1995, complainant alleged that the agency

breached the settlement agreement, contending that the agency failed to

pay the taxes on the $50,000.00, as agreed, and that the interest was

not the correct amount because it was not calculated at the compounded

daily rate from 1989.

On July 30, 1996, the agency issued a final decision finding no

settlement breach. On appeal, the Commission vacated the agency's

decision finding no breach of the settlement agreement and ordered the

agency to supplement the record with documentation to demonstrate the

withholding of taxes and the calculation and method used to determine

the interest owed to complainant. The agency was further ordered to

issue a determination on the breach claim following supplementation of

the record. Dimond v. USPS, EEOC Appeal No. 01955830 (July 30, 1996).

The record reveals that on September 3, 1996, complainant initiated a

request to the Commission to reconsider the decision of July 30, 1996.

The record further reveals that the Commission denied complainant's

request for reconsideration and again ordered the agency to supplement

the record with the stipulation of December 15, 1994, referred to in

the settlement agreement, and any other documentation necessary to

demonstrate the withholding of taxes and the calculation and method

used to determine the interest owed to complainant. Dimond v. USPS,

EEOC Request No. 05960845 (February 12, 1998).

In its final decision that is the subject of the instant appeal, dated

October 28, 1998, the agency dismissed complainant's complaint for failure

to cooperate. The agency determined that the supplemental investigation

revealed no evidence that taxes were paid by the agency relative to

the $50,000.00 payment. Further, the agency stated that complainant

was requested to provide relevant information concerning taxes he feels

the agency is obligated to pay as a result of the $50,000.00 check he

received, but he failed to respond.

On appeal, complainant contended that the agency �did not provide me with

the necessary appeal papers although its letter claimed to have done so.

I did not receive the letter until November 6, 1998. Please send me

the necessary appeal forms so I can appeal.�

Upon review, we find that the agency improperly dismissed complainant's

complaint for failure to cooperate. The record in this case reflects

that the claim of settlement breach has been adjudicated by the Commission

on two separate occasions. Specifically, in a decision dated June 30,

1996, the Commission vacated the agency's decision finding no breach

and ordered the agency to supplement the record with documentation

demonstrating the withholding and calculation method used to determine

the interest owed complainant. The agency was also ordered to issue

a determination on the breach claim following supplementation of the

record. Following complainant's request to reconsider this decision,

the Commission again ordered the agency to take the action addressed

above, in a decision dated February 12, 1998. Given these circumstances,

the Commission determines that the agency is foreclosed from presently

attempting to dismiss this matter for failure to cooperate, but rather

should address the purported failure in its decision regarding the breach

issue, as previously directed by the Commission.

Accordingly, the agency's decision dismissing this matter for failure to

cooperate is VACATED. The matter is REMANDED to the agency for further

processing in accordance with this decision and the ORDER below.

ORDER

The agency, within thirty (30) calendar days of the date this decision

becomes final, is ORDERED to supplement the record with the stipulations

of December 15, 1994, referred to in the settlement agreement, and any

other documentation necessary to demonstrate: (1) the withholding of

taxes; and (2) the calculation and method used to determine the interest

owed to complainant. Thereafter, within thirty (30) calendar days of

the date this decision becomes final, the agency is ORDERED to issue a

determination on the allegation of breach. A copy of the final agency

decision 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

December 13, 2001

__________________

Date