0120091587
06-18-2010
Betty A. Jenkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Betty A. Jenkins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120091587
Agency No. 4K-220-0067-08
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 24, 2009, denying her request to reinstate her
complaint of unlawful employment discrimination in violation of the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS
the Agency's decision.
ISSUE PRESENTED
Whether the Agency appropriately refused to reinstate Complainant's
complaint on the grounds that it was voluntarily withdrawn.
BACKGROUND
In her complaint, Complainant, a Rural Letter Carrier in Linden, Virginia,
alleged that she was subjected to discrimination on the basis of age,
when:
1. on April 7, 2008 she was informed that she would be removed in thirty
(30) days;
2. her manager had stated that she wanted to get rid of all the older
employees in the office; and
3. she was the last of the "older" employees to be removed.
The record indicates that Complainant entered into mediation with
the Agency. During the mediation session, the Contract Mediator
asked Complainant's Manager if the case was going to arbitration.
The Manager responded that it was going to arbitration. Based on
management's response, Complainant signed a "Withdrawal of Complaint of
Discrimination."
CONTENTIONS ON APPEAL
Among other things, Complainant maintained that since arbitration never
occurred, she should have been permitted to reinstate her claim because
she was misled into withdrawing her complaint. Essentially, Complainant
maintains that management's promise to go to arbitration constitutes
a settlement agreement, and that the agreement should be invalidated
because it was the product of coercion.
In response, the agency contends that there was no settlement agreement
because Complainant withdrew her complaint without any written conditions
or stipulations. The Agency also contends that Complainant's withdrawal
was voluntary, noting that the withdrawal form clearly states that
Complainant's withdrawal was not coerced. The Agency additionally
contends that Complainant was given Publication 133 "What You Need
to Know About EEO" and that the publication includes a section on
settlements and withdrawals, further indicating Complainant's awareness
of the EEO process. The agency does not specifically respond to any of
Complainant's other arguments on appeal.
FINDINGS AND ANALYSIS
In past cases, the Commission has found that where a complainant
"knowingly and voluntarily withdrew his complaint .... the Commission
considers the matter to have been finally abandoned." See Pedro
C. Tellez v. Department of Transportation, EEOC Request No. 05930805
(February 25, 1994). The Commission has held that a Complainant may not
request reinstatement of an informal complaint unless the complaint was
withdrawn pursuant to a settlement agreement. See Allen v. Department of
Defense, EEOC Request No. 05940168 (May 25, 1995). Once a Complainant
has withdrawn an informal complaint, absent a showing of coercion, a
Complainant may not reactivate the EEO process by filing a complaint on
the same issue. Id. To allow such a practice would, in effect, extend
the limitations period for filing a formal complaint ad infinitum and
subvert the need for timeliness and efficiency in the EEO process.
Initially, we find that Complainant did not enter into a valid settlement
agreement. Valid settlement agreements are required by 29 C.F.R. �
1614.603 to be in writing and to identify the claims that are resolved.
The manager's statement that Complainant's case was going to arbitration
cannot be deemed to be a valid settlement agreement. Accordingly, this
argument fails. We also find no persuasive evidence that Complainant
was mislead or coerced into withdrawing her complaint. According to
Complainant, her Manager was simply asked whether the matter was going to
arbitration. Upon hearing the response, Complainant voluntarily decided
to withdraw her complaint. If Complainant felt that the withdrawal of
her complaint was conditioned on a promise by the Agency to proceed to
arbitration then she should have ensured that a settlement agreement to
that effect was prepared.
Accordingly the Agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
____6/18/10______________
Date
2
0120091587
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091587