01973418_r
01-05-1999
Cheryl L. Bryer, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cheryl L. Bryer, )
Appellant, )
) Appeal No. 01973418
v. ) Agency No. 4-J-600-1393-94
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On March 20, 1997, appellant filed a timely appeal with this Commission
from a February 5, 1997 final agency decision. In its final decision,
the agency denied appellant's request to reinstate her complaint.
See 29 C.F.R. ��1614.504, .402(a); EEOC Order No. 960, as amended.
In exchange for withdrawing her complaint, appellant and the agency
entered into a Settlement Agreement (SA) on May 5, 1995. The SA provided,
in pertinent part, as follows:
Management agrees to rescind and expunge complainant's termination,
dated July 22, 1994, from complainant's official personnel file and all
agency records.
Management agrees to reinstate complainant as a part-time, flexible letter
carrier, level PS-5/A, at the Rockford Main Office, effective the first
full pay period after all pre-employment requirements are satisfied; but
no later than thirty (30) days from the effective date of the agreement.
Complainant acknowledges that she must complete and satisfy any
pre-employment requirements and meet the qualification and performance
standards of the subject position.
Management and complainant both agree that there will be no probationary
period; that the time from July 22, 1994 until complainant enters on
duty per this agreement will be considered approved leave without pay;
and that this period of time will not be cited in any disciplinary action.
Complainant's seniority date shall remain April 30, 1994.
There will be no reprisal for filing this complaint; no back pay, no
attorney or representation fees, and no other terms or conditions of
this agreement which are not expressly herein; and none will be implied.
Complainant agrees that this agreement is a complete and final settlement
of all issues in all forums related to Complainant's termination, dated
July 22, 1994, and none shall be raised or cited in any other forum.
In a September 10, 1996 letter, appellant informed the agency that it
had breached the SA and she requested that her complaint be reinstated.
Specifically, appellant alleged that in July 1996, the agency issued her
a letter of warning for allegedly failing to obtain a customer signature
on mail and suspended her for seven days for failure to perform required
duties in reprisal for her having been reinstated as an employee pursuant
to the SA. In determining that there was no breach, the agency noted that
an allegation that an agency has engaged in reprisal by taking adverse
personnel actions subsequent to entering into a settlement agreement is
not a basis for reinstating the complaint and should be processed as a
new complaint.
Upon review, we find that the agency properly identified appellant's
allegations regarding the issuance of a letter of warning and suspension
as subsequent acts of discrimination, which should be processed as
new allegations. Under EEOC Regulation 29 C.F.R. �1614.504(c), an
allegation that a subsequent act of discrimination violates a settlement
agreement is properly processed under 29 C.F.R. �1614.106, not as a
breach of the settlement agreement under �1614.504(c). Subsequent acts
of discrimination should be processed as a new complaint, rather than as
a breach of a settlement agreement. See Baul v. Department of the Navy,
EEOC Request No. 05940023 (September 2, 1994); Bindal v. Department of
Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990). It is
not entirely clear from the record whether appellant has received
EEO counseling on the subject allegations or whether she has filed
a complaint. If appellant has not already done so, she may wish to
contact an EEO Counselor pursuant to �1614.105 to pursue the allegations
as a new complaint.
Accordingly, consistent with our discussion herein, the agency's final
decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received by the
Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Jan. 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations