Shameka M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity CommissionJul 28, 2016
0120161900 (E.E.O.C. Jul. 28, 2016)

0120161900

07-28-2016

Shameka M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Shameka M.,1

Complainant,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Eastern Area),

Agency.

Appeal No. 0120161900

Agency No. 1C251000415

DECISION

Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated April 11, 2016, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

BACKGROUND

Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On February 17, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:

(1) Management will discuss [Complainant's] scheduled report time. Management will review and monitor the mail volume staffing and report times from today through March 27, 2015 to determine operational needs. A decision regarding any changes in [Complainant's] scheduled report time will be made after March 27, 2015 and before April 15, 2015.

(2) Requests for leave, change of schedule, and holiday in lieu of, from Tour 3 employees will be determined by a manager or supervisor from Tour 3.

By letter to the Agency dated March 15, 2016, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to review and monitor the mail volume and report times, from February 17, 2015 to March 27, 2015, to determine operational needs. Instead, Complainant alleged that she received a letter from the Agency on April 16, 2015, that management had made a decision that no work was available for her within her medical restrictions and she was denied all work effective April 18, 2015.

In its April 11, 2016 decision, the Agency concluded that Complainant's breach allegations were untimely raised.

The instant appeal followed. In her appeal, Complainant does not contest the untimeliness of her breach allegations, stating that she fully understood that "due to the untimeliness of [her] breach claim it cannot be determined that a breach did in fact happen."

ANALYSIS

EEOC Regulation 29 C.F.R. � 1614.504(a) provides that if a complainant believes that an agency has failed to comply with the terms of a settlement agreement, the complainant shall notify the agency's EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged breach.

In the instant case, Complainant raised her breach allegations eleven months after the Agency's alleged failure to review and monitor mail volume and it found there was no work available for her. Complainant does not contest that her breach allegations were untimely raised and proffers no reason to excuse the delay. Accordingly, we AFFIRM the Agency's determination that her breach claim was untimely raised.

We note that, on appeal, Complainant references a pending EEO complaint (Agency Complaint No. 1C-251-0023) and appears to seek to amend the complaint to include a claim of unlawful retaliation. In response, the Agency noted that Complaint No. 1C-251-0023, which dealt with the denial of reasonable accommodation, has already been adjudicated by the Agency. The Commission's records indicate there is an appeal pending with that complaint number, identified as EEOC Appeal No. 0120162267. Thus, we decline to address this amendment request in this decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 tends 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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden's signature

Carlton M. Hadden, Director

Office of Federal Operations

July 28, 2016

__________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

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