Betty A. Jenkins, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.

Equal Employment Opportunity CommissionJun 18, 2010
0120091587 (E.E.O.C. Jun. 18, 2010)

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complaint on the grounds that it was voluntarily withdrawn.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