closed0120113771
11-06-2012
Bettye A. Burris, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Bettye A. Burris,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120113771
Agency No. 4K-230-0144-111
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated July 7, 2011.
BACKGROUND
The record reflects the following chronology of events.
During the period at issue, Complainant worked as a Clerk at the Agency's facility in Williamsburg, Virginia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On May 13, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) [Complainant's] status will be changed from a voluntary reassignment to an excessed employee. The only right that is changed is that [Complainant] retains her seniority date of [March 18, 2006]. Any record of a ereassign to the Richmond P&DC will be rescinded.2
(2) If there are related grievances (beyond Step 1) which the parties would like to withdraw, an authorized union official must sign below.
(3) If the terms of this agreement are determined to violate a provision of the applicable collective bargaining agreement, this agreement will be null and void. In the event that this agreement becomes null and void, the complainant will be allowed to either renegotiate the terms of this agreement to be in compliance with the collective bargaining agreement OR to reinstate his or her complaint.
By letter to Complainant dated June 14, 2011, an EEO Specialist informed Complainant that the settlement agreement was being set aside and that the underlying complaint would be processed from the point where processing ceased. Specifically, the EEO Specialist stated "I contacted management regarding implementation of the settlement. However, as mentioned in my message to you yesterday, I was told the agreement might violate the Collective Bargaining Agreement (CBA) provisions. Today, I was informed that the settlement language does violate Article 12 of the Mail Handlers' National Agreement." In its June 14, 2011 letter, the Agency did not provide Complainant with any appeal rights to the Commission.
In her formal complaint, Complainant sets forth that she is seeking the remedies set forth in her May 13, 2011 settlement agreement.
On July 7, 2011, the Agency issued a final decision in this matter and determined that Complainant's formal complaint was comprised of the following claim:
On March 8, 2011, [Complainant] was pressured into making a decision to submit a voluntary reassignment to a Mailhandler position in Richmond, [Virginia].
The Agency dismissed Complainant's formal complaint for failure to state a claim. The Agency reasoned that Complainant was not aggrieved because she made a voluntary reassignment/transfer request.
The instant appeal followed.
ANALYSIS
Based on the chronology of the events set forth above, we must first determine whether the Agency properly set aside the May 13, 2011 settlement agreement and whether it properly reinstated Complainant's underlying complaint.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides, in relevant part, that "[a]ny settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties."
The instant case raises the issue of whether a settlement agreement violates an existing CBA.
In Iglesias v. U. S. Postal Serv., EEOC Request No. 0520110503 (Mar. 30, 2012), we clarified the Commission's principle in Pyles v. U.S. Postal Serv., EEOC Request No. 05920044 (April 22, 1992) that we will examine whether a settlement agreement violates a relevant CBA before setting it aside.
In the instant case, the Agency determined that the settlement agreement violated the CBA. However, we are unable to determine from the record if the agreement actually violates the CBA. The record is devoid of any analysis or evidence of how the agreement violates the CBA other than the Agency setting forth its determination in its June 14, 2011 letter that the agreement violates "Article 12 of the Mail Handlers' National Agreement." Thus, as set forth below, we order the Agency to supplement the record in order to determine whether the settlement agreement violates the CBA.
Moreover, we remind that the Agency that we have previously warned it regarding its failure to have Labor Relations personnel properly review settlement agreements in order to avoid conflicts with relevant CBAs. See Iglesias v. U. S. Postal Serv., EEOC Request No. 0520110503 (Mar. 30, 2012); Rathbone v. U.S. Postal Serv., EEOC Request No. 05910050 (Mar. 7, 1991). We note that, in the instant matter, the settlement agreement contained the following boilerplate language, "[t]his Agreement does/does not need to be approved by _______________(e.g. union official, management official, labor relations, etc)." The language "does not" was circled in this statement indicating that the agreement did not need to be approved by another individual.3
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
Within sixty (60) days from the date this decision becomes final, the Agency is ordered to take the following actions. The Agency shall supplement the record with documentation and any other evidence indicating whether the settlement agreement violates a relevant CBA. The Agency shall issue a new final decision (with appeal rights to the Commission) indicating whether the settlement agreement violates the CBA and explain its reasoning in reaching its final disposition of the matter. The Agency must send a copy of the new final decision to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 (M0610)
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 (R0610)
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 (Z0610)
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 6, 2012
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Bettye A. Burris
3504-B King Henry Ct
Richmond, VA 23223
U.S. Postal Service (Capital-Metro)
NEEOISO - Appeals
U.S. Postal Service
PO Box 21979
Tampa, FL 33622-1979
__________________
Date
______________________________
Equal Opportunity Assistant
1 The record reflects that the Agency's final decision dated July 7, 2011 lists the Agency Case No. as 4K-230-0144-11. We note, however, that throughout the record the instant matter has been identified both as Agency Case No. 4K-230-0144-11 and Agency Case No. 4K-280-0144-11 (which appears to be an inadvertent error).
2 We note that the original settlement agreement did not contain provision numbers. Provision numbers are added herein for ease of reference.
3 We note that the settlement agreement was signed by two management officials, Complainant, and Complainant's representative at the time.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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