0120093090
11-20-2009
Albert Y. Wong,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120093090
Agency No. 1F901009406
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 9, 2009, finding that it was
in compliance with the terms of the May 10, 2006 settlement agreement
into which the parties entered. 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 Manager
of Distribution Operations (MDO) G.H. agreed to assist complainant,
as able, with job offers until he returned to full duty.1
On an EEO intake form labeled "Information for Pre-Complaint Counseling"
submitted to the agency dated April 30, 2009, complainant alleged that it
breached the May 10, 2006, settlement agreement when on April 8, 2009,
he was told there was no work available within his medical restrictions
and was sent home. He also alleged disability discrimination. As remedy
complainant asked for full duty of eight hours a day, five days a week,
and to be made whole for any lost time.
In its June 9, 2009, FAD, the agency concluded that it did not breach the
settlement agreement. It observed that G.H. stopped being complainant's
MDO in November 2006, that she had no knowledge of complainant's present
condition or his being sent home, but while she was complainant's
MDO, she ensured that he was assigned any available work within his
restrictions.
On appeal, complainant makes no comment. In opposition to complainant's
appeal, the agency argues that complainant did not actually allege breach,
rather, he is alleged a subsequent issue.
We agree with the finding in the FAD that the settlement agreement was
not breached. Complainant has not established that a promise in May
2006 to help him with job offers until he returned to full duty applied
to the situation of his being sent home in April 2009 for lack of work
within his medical restrictions. Also, while complainant couched his
intake contact as concerning a breach of the settlement agreement, we
agree with the agency's argument that complainant actually is alleging
a subsequent issue; namely disability discrimination.
Complainant's allegation on his EEO intake form that subsequent act(s)
of disability discrimination violated the settlement agreement should
be treated as part of the EEO process on a discrimination claim.
29 C.F.R. � 1614.504(c). On remand, the agency shall treat it as such,
counsel complainant, and process the matter in accordance with 29 C.F.R.
� 1614.105(b)(1) et seq.
ORDER
The agency shall treat the EEO intake form dated April 30, 2009 as part
of the EEO process on a discrimination claim, and counsel complainant
and process the matter in accordance with 29 C.F.R. � 1614.105(b)(1)
et seq. The agency shall acknowledge to the complainant that it has
received the intake form within thirty (30) calendar days of the date
this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant 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 (S0408)
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 (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
November 20, 2009
__________________
Date
1 The settlement agreement contained other provisions, such as having
absence without leave (AWOL)s removed.
??
??
??
??
2
0120093090
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093090