0120092711
12-01-2009
Ronald Miller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald Miller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092711
Agency No. 4F-926-0041-09
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated May 4, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
On December 5, 2008, complainant initiated EEO contact alleging that the
agency retaliated against him for prior protected EEO activity when,
on December 2, 2008, a Human Resources representative (HR1) failed
to respond to his inquiry about adjustments to his retirement account
and alleged debt to the agency, as was required by a prior settlement
agreement. He stated that later, during a telephone conversation, HR1
was unable to provide justification for the agency's failure to make
proper adjustments.
In its May 4 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a), for untimely EEO contact
and failure to state a claim. The agency stated that it reinstated
complainant in August 2003 and that complainant acknowledged that his
earnings statements did not reflect prior retirement contributions, so
it was at that time the statutory time-frame was triggered. Further,
the agency stated that complainant received a letter of demand for
debt approximately a year before his initial EEO contact. The agency
also stated that complainant's retirement contributions issue "lodge[s]
a collateral attack on another forum's proceeding."
Here, the record reflects that complainant claimed that the agency
retaliated against him when it failed to comply with the terms of an
August 2003 settlement agreement into which the two entered. Accordingly,
we find that complainant's December 2008 contact is more appropriately
viewed as an allegation of settlement breach, rather than as a separate
complaint. Breach of settlement is addressed in EEOC Regulation 29
C.F.R. � 1614.504. However, there is insufficient information in
the record to determine whether the agency failed to comply with the
2003 agreement with complainant. Accordingly, we VACATE the agency's
procedural dismissal and REMAND the matter to the agency for supplemental
investigation pursuant to 29 C.F.R. � 1614.504(c) and consistent with
this decision and the Order below.
ORDER
The agency is ordered to investigate the issue of whether it failed to
comply with a settlement agreement with complainant (presumably from
about August 2003) when it failed to make appropriate adjustments to
complainant's retirement account and alleged indebtedness balance. In
the supplemental investigation, the agency shall include the pertinent
settlement agreement and documentation evidencing actions taken to
comply with said agreement. The agency must also provide complainant
an opportunity to place into the record any evidence supporting his
claim on non-compliance. Within sixty (60) calendar days from the
date this decision becomes final, the agency shall issue a decision
as to whether it complied with the pertinent settlement agreement.
The agency's decision shall provide appeal rights to this Commission.
Documentation evidencing the agency's supplemental investigation and its
subsequent decision must be sent to the Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 1, 2009
__________________
Date
2
0120092711
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092711