Sharon Forde, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 30, 2003
01a31912 (E.E.O.C. Dec. 30, 2003)

01a31912

12-30-2003

Sharon Forde, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sharon Forde v. United States Postal Service

01A31912

December 30, 2003

.

Sharon Forde,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A31912

Agency Nos. 4-E-800-0106-97

1-E-801-0020-98

1-E-801-0013-98

DECISION

Complainant filed an appeal with this Commission concerning the agency's

compliance with an April 1, 2002 settlement agreement. The Commission

accepts the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);

and 29 C.F.R. � 1614.405.

Review of the record reflects that by letter dated October 3, 2002,

complainant attempted to file her breach claim with the EEOC's Denver

District Office. Upon receipt, the Denver District Office transferred

complainant's correspondence to the agency for processing. However,

we find that the record is devoid of any indication that the agency

responded to complainant's breach claim. We further note that it does

not appear that the agency issued a final decision or submitted a response

to this appeal.

Notwithstanding the absence of a final decision or a response on appeal,

the Commission determines that the matters raised in complainant's

claim do not fall within the purview of the operative terms of the

settlement agreement. Specifically , complainant acknowledges that her

claim does not relate to the agency's compliance with the settlement

agreement's operative terms, which include but are not limited to an

award of back pay, restoration of leave, a lump sum payment, provision

of a work reference, review /expungement of personnel and medical files,

and assistance with filing medical documentation with the Office of

Workers' Compensation Programs.

Instead, complainant here contends that the agency violated the

anti-reprisal provisions included in the settlement agreement.

In particular, complainant asserts that the agency has engaged in

on-going retaliatory harassment against her, setting forth a chronology

of incidents, dating from May 2002 to September 2002. These incidents

concern disputes about the reinstatement of her health benefits and

restoration of her retirement date, and her supervisor's refusal to

become involved in these disputes. Complainant also claims that the

agency engaged in retaliatory harassment concerning the processing

of a new on-the-job injury claim (June 15, 2002), to include allowing

co-workers to unfairly benefit in terms of training and experience due to

her injury related absences, as well as a variety of problems with leave

requests associated with her work-related injury. Complainant further

identifies a disciplinary �interview� which took place on July 10, 2002,

again claiming that it was motivated by retaliatory harassment.

Complainant requests that her underlying complaints be reinstated, and

advises the Commission that she is �in the process� of filing a separate

complaint on the matters raised in her breach claim.

The Commission has held that a claim of reprisal in violation of a

settlement agreement's anti-retaliation clause is to be processed as a

separate complaint rather than as a breach of the settlement agreement.

See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225

(August 9, 1990). Additionally, 29 C.F.R. � 1614.504(c) provides

that claims that subsequent acts of discrimination violate a settlement

agreement shall be processed as separate complaints.Based on complainant's

statements, and the operative provisions of the settlement agreement at

issue, we find that the claims raised by complainant in her �breach claim�

must be construed as a separate complaint of retaliatory harassment.

Therefore, if she has not already done so, we advise complainant to

contact an EEO Counselor regarding these claims if she wishes to further

pursue them.

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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 30, 2003

__________________

Date