0120063407
10-16-2007
Tammara J. Polley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tammara J. Polley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200634071
Agency No. 4-J-604-0097-98
DECISION
On April 6, 2006, complainant, by and through her attorney, filed
an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) claiming that the agency was in breach of an April 16,
1999, settlement agreement which the parties entered. Under 29 C.F.R.
� 1614.504, if a complainant believes that the agency has failed to
comply with the terms of a settlement agreement, she shall notify the
Equal Employment Opportunity (EEO) Director in writing of the alleged
noncompliance within 30 days of when he knew or should have known of
the alleged noncompliance. The regulation states that the agency shall
resolve the matter and respond to the complainant in writing. Under the
regulation, if the agency has not responded to the complainant or if the
complainant is not satisfied with the agency's attempt to resolve the
matter, the complainant may appeal to the Commission for a determination
as to whether the agency has complied with the terms of the settlement
agreement. The complainant may file such an appeal within 35 days
after she has served the agency with the allegations of noncompliance
but must file an appeal within 30 days of her receipt of the agency's
determination. Id. The agency did not issue a final determination.
According to complainant, her case revolved around her being found
medically unsuitable for the position of part-time flexible carrier,
resulting in her name being removed from the agency list of eligibles.
The settlement agreement, arrived at the administrative hearing stage
of the complaint process, provided in part that she would be hired
effective April 10, 1999; and "would be compensated for one year (12
months/26 pay periods) of pay at the applicable straight time rate as
of March 27, 1998)." The agency interpreted the compensation to mean
back pay with deductions, including earnings from employment during the
back pay period. Complainant's attorney interpreted the compensation to
mean one year of salary with only some or no deductions (for example,
not deduct employment earnings). When the agency sent complainant an
Employee Statement to Recover Back Pay form (back pay worksheet) to help
it calculate back pay and deductions, complainant only completed certain
portions to avoid deductions. She explained her reasons for doing so.
In response to this, on September 3, 1999, the agency's Labor Relations
back pay coordinator replied that the settlement agreement provided for
back pay, which could not be submitted for payment to the accounting
service center until complainant completed the mandatory back pay
worksheet. It does not appear that complainant ever did so.
Complainant notified the agency's EEO Director, through her attorney,
of the alleged breach of the settlement agreement on September 15,
1999. After getting no response, complainant, through her attorney,
on October 15, 1999, filed an appeal with the EEOC's Chicago District
Office alleging breach.
The EEOC Chicago District Office does not have jurisdiction over federal
sector administrative appeals. The appeal was filed with the wrong
office. It should have been filed with the EEOC's Office of Federal
Operations (OFO) in Washington, D.C. Complainant's attorney states that
his paralegals periodically made telephone calls to the EEOC asking about
status of appeals, and was told there were backlogs. On April 5, 2006,
the attorney wrote a letter to OFO asking about the status of the appeal,
and in a reply call by an identified person was told there was no record
of an appeal. The attorney then forwarded a copy of the appeal which
was filed with the EEOC's Chicago District Office on October 15, 1999.
OFO docketed the appeal as made on April 5, 2006.
In response to complainant's appeal, the agency argues in part that it
should be barred by the doctrine of laches. It argues that complainant
has failed to act with due diligence.
In this case, complainant, through her attorney, filed the appeal with the
wrong EEOC office, and allowed the case to languish for 61/2 years before
getting it filed with the correct office. While the attorney writes that
the EEOC indicated the appeal was pending in response to telephone calls,
no specific EEOC staff was identified as saying this. OFO has no record
of an appeal by complainant prior to April 5, 2006, and the Chicago
District Office does not process federal sector administrative appeals.
The doctrine of laches is an equitable remedy under which an individual's
failure to diligently pursue their legal remedies can bar their claims.
See O'Dell v. Department of Health and Human Serv., EEOC Request
No. 05901130 (December 27, 1990). Here, we have a 61/2 year delay
before the appeal was filed with the correct office. The agency should
not have to defend itself against such a stale claim. See Motley Jr.,
et al. v. Tennessee Valley Authority, EEOC Appeal No. 01965792 (September
22, 1998)(class agent delayed over five years prior to filing an appeal
regarding an alleged breach of a settlement agreement. Commission found
that the agency should not be obligated to defend itself more than five
years old simply because class agent did not diligently pursue his rights
in filing an appeal). Accordingly, complainant's appeal is dismissed.
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
October 16, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120063407
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063407