01a54319
11-22-2005
Willie W. Collier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Willie W. Collier v. United States Postal Service
01A54319
11-22-05
.
Willie W. Collier,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54319
Agency No. 4G-780-0067-03
Hearing No. 270-2004-00011x
DECISION
Complainant filed a timely appeal with this Commission regarding the
agency's compliance with the terms of the July 28, 2004 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.
The settlement agreement provided, in pertinent part, that:
The terms of this agreement will not establish any precedent, nor will
this agreement be used as a basis by the complainant or any representative
organization to seek or justify similar terms in any subsequent case
involving persons other than the complainant.
In correspondence to the agency's Manager, Human Resources, dated October
27, 2004, complainant stated the following:
�This is your official notification that my settlement has been breached.
It is my intention to file a formal complaint thirty days after your
receipt of this letter.�
Thereafter, on February 27, 2004, complainant notified the agency's EEO
Director that the agency had breached the agreement between the parties.
Specifically, complainant alleged that the agency violated provision
(5) of the agreement when it provided a copy of the settlement to the
attorney of another employee in an attempt to force that employee to
accept the terms as stated in complainant's agreement with the agency.
In her allegation of breach, complainant failed to provide any persuasive
evidence or argument, other than her bare assertion that the agency
violated provision (5) of the agreement.
The record further reveals that in her appeal to this Commission dated
June 26, 2005, complainant alleges also that the agency failed to
provide consideration for any of the terms included in the agreement.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement, the complainant shall notify
the EEO Director, in writing of the alleged noncompliance within 30
days of the date when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
In its July 29, 2005 response to complainant's appeal to the Commission,
the agency argues that complainant's allegation of breach is untimely
and that she did not follow proper procedure in alleging breach of
the agreement. Specifically, the agency indicates that in accordance
with EEOC Regulations, the complainant was obligated to contact the
agency's EEO Director in writing of the alleged noncompliance within
30 days. The record indicates, however, that complainant wrote to the
agency's Human Resource Manager on October 27, 2004 and not the agency's
EEO Director regarding her allegation of breach. A review of the
settlement agreement executed by the parties reveals that in paragraph
(9) of the agreement, complainant was specifically advised to notify
in writing the �then-Manager, Human Resources, Louisiana District� that
the agreement had been breached. The Commission finds in that regard,
that the complainant's contact of the Human Resources Manager and not the
EEO Director was proper in accordance with the July 28, 2004 settlement
agreement.
Complainant alleges further in her appeal to this Commission that she
learned on October 28, 2004, that the agency had breached provision
(5) of the agreement when she alleges the agency provided a copy of
the settlement to the attorney of another employee in an attempt to
negotiate settlement terms similar to those accepted by complainant
in the instant matter. However, in her October 27, 2004 letter to
the Human Resources Manager, complainant failed to advise the agency
specifically how it breached the agreement. Subsequently, in her letter
to the agency's EEO Director on February 27, 2005; four months after she
learned of the alleged breach of provision (5), complainant advised the
agency regarding her specific breach allegation.
The Commission has held that individuals using the EEO process must
act with due diligence in the pursuit of their claims or the doctrine
of laches may be applied. See O'Dell v. Department of Health and Human
Services, EEOC Request No. 05901130 (December 27, 1990). �The doctrine
of laches is an equitable remedy under which an individual's failure
to diligently pursue their legal remedies can bar their claims.� Id.
Regarding complainant's breach allegation concerning provision (5), we
find that the doctrine of laches is applicable. Complainant entered
into a settlement agreement with the agency on July 28, 2004, and on
October 27, 2004 alleged generally, that a breach of the agreement had
occurred; however, complainant did not raise the allegation that the
agency used the settlement to establish precedent in another employee
matter (provision 5) until February 27, 2005. Moreover, complainant
did not raise the allegation regarding lack of consideration until her
June 26, 2005 appeal to the Commission. We therefore determine that
complainant failed to diligently pursue her breach allegations.
Even were we to assume, arguendo, that complainant raised her claim of
breach in a timely and appropriate fashion, the record does not show
that the agency breached the agreement. There was no confidentiality
provision in the agreement which would prevent the agency from taking
the action complainant alleges constitutes a breach, nor do we read
provision five of the agreement as being violated because the agreement
was given to another employee's attorney. Finally, we find the agreement
does provide consideration for complainant, in the form of training and
taking affirmative steps to seek out a detail for complainant and to
recommend her for any Safety Manager details.
Accordingly, we find that complainant has not presented persuasive
arguments or evidence that the agency breached provision (5)
or otherwise failed to provide consideration for the July 28, 2004
settlement agreement. The agency's determination that it complied with
the agreement is hereby AFFIRMED for the reasons set forth herein.
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
_____11-22-05_____________
Date