01a30228_r
03-13-2003
Tyrone Lewis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tyrone Lewis v. United States Postal Service
01A30228
March 13, 2003
.
Tyrone Lewis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30228
Agency No. 4-J-000-0006-02
DECISION
The record indicates that on June 19, 2002, complainant contacted an EEO
Counselor alleging that the agency failed to remove his Letter of Warning
dated February 23, 2001, thereby failing to comply with a settlement
agreement. Unable to resolve the matter informally, complainant
filed a formal complaint dated August 20, 2002, concerning the matter.
On September 27, 2002, the agency issued its decision dismissing the
complaint due to untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2). Specifically, the agency stated that complainant's June
19, 2002 EEO Counselor contact with regard to the complaint was beyond
the 45-day time limit set by the regulations. The agency indicated that
complainant had not, previously, filed a complaint nor entered into a
settlement agreement with regard to the Letter of Warning.
The record clearly indicates that on May 14, 2001, the parties,
previously, entered into a settlement agreement concerning complainant's
Letter of Warning. The settlement agreement provided, in part, that:
[Complainant] will not sell jewelry while on or off duty inside any
post office.
The Letter of Warning dated February 20, 2001, for Violating the
Standards of Conduct is reduced to a discussion.
The Letter of Warning in Lieu of a 7-day time off suspension for Failure
to Follow Instructions is reduced to a Letter of Warning.
The record indicates that provision 6 refers to complainant's Letter of
Warning in Lieu of a 7-day Time-Off Suspension dated February 23, 2001.
On appeal, the agency admits that complainant and the agency entered
into a settlement agreement on May 14, 2001. The agency argues that
the settlement agreement was not the result of any EEO complaint.
The settlement agreement does not reference any specific EEO complaint
or specific request for EEO counseling. The settlement agreement does
provide that, �this Agreement is in full and complete settlement of all
outstanding administrative EEO complaints or appeals, in this or any other
forum, filed by the appellant or on his behalf relating to any matters
that occurred prior to the execution of this Settlement Agreement.�
The Commission concludes that complainant is alleging breach of the
settlement agreement. To the extent that the settlement agreement
settled an EEO matter, we find that complainant has failed to show
that the agency breached the settlement agreement. The agency was not
required to removed the February 23, 2001 Letter of Warning in Lieu of
a 7-day time off suspension for Failure to Follow Instructions.
To the extent that complainant is attempting to file a new EEO complaint
regarding the February 23, 2001 Letter of Warning in Lieu of a 7-day
time off suspension for Failure to Follow Instructions, we find that
such a claim was properly dismissed due to untimely contact with an EEO
Counselor. See 29 C.F.R. � 1614.107(a)(2). The alleged discriminatory
failure to remove the February 23, 2001 Letter of Warning in Lieu
of a 7-day time off suspension for Failure to Follow Instructions is
indistinguishable in the instant matter from the issuance of the February
23, 2001 Letter of Warning in Lieu of a 7-day time off suspension for
Failure to Follow Instructions. Therefore, complainant's contact of an
EEO Counselor on June 19, 2002, more than 45 days after
the issuance of the February 23, 2001 Letter of Warning in Lieu of a 7-day
time off suspension for Failure to Follow Instructions, was untimely.
Accordingly, the agency's decision is AFFIRMED and we find no breach of
the settlement agreement.
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
March 13, 2003
__________________
Date