0120083755
05-14-2010
Reference #: 0120083755
Mark Kessinger
PO Box 38707
Houston, TX 77238
Reference #: 0120083755
Babu K. Thomas
2911 Kettle Run
Sugar Land, TX 77479
Reference #: 0120083755
U.S. Postal Service (Southwest)
NEEOISO - Appeals
U.S. Postal Service
PO Box 21979
Tampa, FL 33622-1979
Babu K. Thomas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120083755
Agency No. 4G-770-0358-06
DECISION
On August 28, 2008, complainant filed an appeal with this Commission
alleging that the agency breached the terms of the May 22, 2008 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.504.
The settlement agreement provided, in pertinent part, that:
1. Complainant will be given the opportunity to serve as a 204-B
Supervisor for a minimum of 90 days beginning on June 1, 2008 and ending
on December 1, 2008;
2. Complainant will serve as a 204-B Supervisor at the Richmond,
Texas Post Office;
3. Complainant will receive training from a combination of
supervisors and managers during the time period and training will be
overseen by the Postmaster; and
4. In the event that complainant believes that the agency is not
living up to the terms of the agreement, he will notify the Postmaster
in writing of his concerns. The Postmaster will schedule a meeting
and confer with complainant regarding his concerns within 10 days.
Exercise of this provision of the agreement will extend any other time
periods for seeking relief under this settlement.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides, in pertinent part,
that 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 when
the complainant knew or should have known of the alleged noncompliance.
In addition, EEOC Regulation 29 C.F.R. � 1614.504(b) provides, in
pertinent part, that the agency shall resolve the matter and respond
to the complainant, in writing. If the agency has not responded to the
complainant, in writing, or if the complainant is not satisfied with the
agency's attempt to resolve the matter, the complainant may appeal to the
Commission for a determination as to whether the agency has complied with
the terms of the settlement agreement. The complainant may file such
an appeal 35 days after he has served the agency with the allegations
of noncompliance, but must file an appeal within 30 days of his receipt
of an agency's determination.
In the present case, we find that complainant's failure to notify the
EEO Director of the alleged breach before he filed the instant appeal
is in violation of 29 C.F.R. � 1614.504(a). The record indicates that
complainant filed his appeal with the Commission and sent a copy of his
appeal to the agency's EEO Office on the same day - August 28, 2008.
Although complainant wrote in a July 18, 2008 letter to the Postmaster of
the Richmond Post Office, "This official notice complies with the terms of
the settlement agreement ... and fulfills my obligation of 10 day notice
that I consider the agency in breach of settlement," we find that the
letter did not constitute proper notice under 29 C.F.R. � 1614.504(a),
as it was sent to the Postmaster of the Richmond Post Office and not to
the agency's EEO Office.
We observe that it is now well beyond the 35 day timeframe that the
agency had to respond to complainant's breach allegation and that it
has not done so, either by responding to complainant's appeal or by
issuing a decision in writing. After careful consideration, we REMAND
complainant's allegation of noncompliance to the agency for processing
consistent with this decision and the Order below.
ORDER
The agency is ordered to process the remanded claim of noncompliance,
unless otherwise noted, in accordance with 29 C.F.R. � 1614.504.
The agency shall acknowledge to complainant that it has received the
remanded claim, resolve the matter, and provide a written response with
appropriate rights to complainant within thirty (30) calendar days of
the date this decision becomes final.
A copy of the agency's determination must be submitted 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 14, 2010
Date
2
0120083755
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083755