0120090916
05-20-2009
William J. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William J. Thomas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090916
Agency No. 4F956009708
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 9, 2008, finding that it
was in compliance with the terms of the September 12, 2008 document that
the agency characterized as a settlement agreement between the parties.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405. By letter to the agency dated October 19, 2008, complainant
alleged that the agency was in breach of a settlement agreement between
the parties, and requested that the agency specifically implement its
terms. Complainant did not specify the date of the alleged agreement.
In his breach allegation, complainant specifically alleged that the
agreement set his schedule from 6:30 am to 2:30 pm with a half hour
lunch, with Saturday and Sunday off. Complainant alleged that the agency
subsequently changed his schedule so that he now has Fridays off.
In its December 9, 2008 FAD, the agency concluded it had not breached
the agreement, but did not specify how it reached that conclusion.
We note initially that EEOC Regulation 29 C.F.R. � 1614.603 provides
that any settlement reached "shall be in writing and signed by both
parties and shall identify the allegations resolved." Furthermore, 29
C.F.R. � 1614.504(a) provides that any settlement agreement "knowingly and
voluntarily" agreed to by the parties shall be binding on the parties.
In the present case, we find that there is nothing in the record to
suggest that the parties entered into a valid EEO settlement agreement.
Furthermore, we find that the document submitted on appeal is not a
settlement agreement under � 1614.504(a). The document in question
appears to be a memorandum detailing the actions undertaken by an
agency EEO official in an effort to settle the dispute, but it does not
constitute a settlement agreement. The document refers to efforts by the
un-named EEO official to minimize the current and future financial impact
of complainant accepting a job offer in the Clerk craft. The document
contains no language about settlement terms and no language addressing
the rights and obligations of each party under the alleged agreement.
Nor does the document contain a statement of rights informing the
parties of what to do should one of the parties breach the agreement.
In addition, the document does not "identify the allegations resolved"
by the alleged agreement, as required by � 1614.603. Therefore, we
find that the document submitted by the agency did not constitute a
valid settlement agreement, and the final agency decision finding no
settlement breach is vacated. The Commission hereby voids the September
12, 2008 document and remands this case so that the EEO complaint may
be reinstated for further processing in accordance with the Order herein.
ORDER
The agency is ORDERED to resume processing of complainant's complaint from
the point processing ceased within thirty (30) calendar days of the date
this decision becomes final. The agency shall acknowledge to complainant
that it has reinstated and resumed processing of his complaint. A copy
of the agency letter of acknowledgement 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
May 20, 2009
__________________
Date
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0120090916
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090916