0120090006
01-06-2009
Xiao C. You, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Xiao C. You,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090006
Agency No. 4A070018808
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 25, 2008, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Asian), national origin (Chinese), and sex (Male)
when:
1. He was not paid under the terms of an EEO settlement in agency case
No. 4A-070-0081-07; and
2. He was not paid thirty-five (35) minutes of overtime on March 3,
2007 or for December 15, 2007 to December 21, 2007.
The agency dismissed claim 1 on the grounds that it alleged
dissatisfaction with the processing of a prior complaint. EEOC
Regulation 29 C.F.R. � 1614.107(a)(8). Specifically, the agency found
that complainant's claim that he was not paid according to a prior
settlement was improperly raised as a new claim. The agency concluded
that because complainant's concerns about pay he alleges the agency
owes him were addressed in a prior agreement between the parties,
he should properly raise his concerns within the prior claim itself
as a breach of settlement. As such, the agency concluded that claim
1 should be dismissed in accordance with EEOC Regulation 29 C.F.R. �
1614.107(a)(8).
In claim 2, the agency found that complainant's contact of an EEO
Counselor on May 2, 2008 regarding events occurring in March and
December 2007 was beyond the applicable time limitations and untimely
in accordance with EEOC Regulations. The agency dismissed claim two in
accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). On appeal,
complainant maintains that he has not been paid for various dates
beginning in November 2006 through March 3, 2008.
Upon review, the Commission finds that the agency's dismissal of claim
1 on the grounds that it alleges dissatisfaction with the processing of
a prior complaint is improper. The record indicates that the parties
entered into a settlement regarding incidents raised in complainant's
prior EEO complaint No. 4A-070-0081-07. The prior settlement agreement
obligates the agency to place complainant as a new hire to a part-time
flexible letter carrier position and requires that complainant be subject
to a 90 day probationary period. Item number 10 of the December 3,
2007 settlement agreement also states that :
It is understood that Complainant waives any and all claims for
back-pay and attorney's fees in the matters raised in . . . Agency Case
No. 4A-070-0081-07. This waiver does not include any claim for pay earned
before January 29, 2007 to which Complainant may be entitled, but which
is not a part of the instant Complaint or this Settlement Agreement.
The December 3, 2007 agreement between the parties specifically states
that any claim complainant may have concerning pay earned before January
29, 2007 is not a part of the complaint or the settlement agreement
itself. Therefore, the claims complainant raises about pay earned
prior to January 29, 2007 are specifically excluded from the terms of
the December 3, 2007 settlement agreement. In its August 25, 2008 final
decision, the agency argues that complainant cannot file a new complaint
regarding his concerns which were addressed in a settlement agreement.
However, the language of item 10 of the agreement specifically obligates
complainant to file a new complaint regarding his concerns about pay
which where not made part of the agreement. The agency cannot in one
breath specifically exclude issues from a settlement and then in another
breath argue that those very issues were addressed in the agreement and
therefore not ripe for adjudication as a new claim. For the reasons
set forth above, the Commission finds that the agency's dismissal of
claim 1 was improper. Accordingly, claim 1 is remanded to the agency
for processing.
In claim 2, the agency found that complainant failed to contact an
EEO Counselor within 45 days of the alleged discriminatory events
occurring in March and December 2007. Upon review, we find that the
agency's dismissal of claim 2 as untimely was improper. In claim 2,
complainant alleges that he was not paid for 35 hours of overtime on
March 3, 2007 and he was not paid for hours worked from December 15,
2007 to December 21, 2007. Because the December 3, 2007 settlement
between the parties refers to "claims for pay earned before January
29, 2007, complainant may or may not be entitled to," the Commission
finds that the agency was on notice regarding the concerns complainant
identifies in claim 2. The Commission finds further that complainant's
claims should be counseled in accordance with EEOC Regulations. In that
regard, the Commission remands claim 2 for processing as well.
Accordingly, the agency's decision dismissing claims 1 and 2 is reversed
and claims 1 and 2 are remanded to the agency for processing in accordance
with this decision and the Order below.
ORDER
The agency is ordered to take the following action:
1. The agency shall provide complainant with the opportunity to
obtain EEO counseling regarding the claim that he is entitled to pay
earned for hours worked before January 29, 2007 which were specifically
excluded from a December 3, 2007 settlement agreement. For purposes
of determining timeliness, and absent proof of a date to the contrary,
the date of initial EEO counselor contact regarding claim 1, shall be the
date of the settlement agreement between the parties; December 3, 2007.
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall notify complainant that he has fifteen (15) calendar days
from receipt of the agency's notification to contact an EEO Counselor.
The agency shall thereafter decide whether to process or dismiss this
allegation in accordance with the regulation set forth in 29 C.F.R �
1614.102 et seq.
2. The agency shall provide complainant with the opportunity to
obtain EEO counseling regarding the claim that he is entitled to pay
earned for overtime worked on March 3, 2007 and for hours worked from
December 15, 2007 to December 21, 2007. For purposes of determining
timeliness, and absent proof of a date to the contrary, the date of
initial EEO counselor contact regarding claim 2, shall be the date of
the settlement agreement between the parties; December 3, 2007. Within
fifteen (15) calendar days of the date this decision becomes final, the
agency shall notify complainant that he has fifteen (15) calendar days
from receipt of the agency's notification to contact an EEO Counselor.
The agency shall thereafter decide whether to process or dismiss this
allegation in accordance with the regulation set forth in 29 C.F.R �
1614.102 et seq.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice providing complainant the opportunity to obtain EEO
counseling on the above claims 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").
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 6, 2009
__________________
Date
2
0120090006
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090006