01984678
12-22-2000
Clarence Gardner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Clarence Gardner v. United States Postal Service
01984678
December 22, 2000
.
Clarence Gardner,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984678
Agency Nos. 4-P-1004-90, 4-P-1061-90, 4-P-1062-90
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated April 28, 1998, related to complainant's claim of
breach of the parties' July 10, 1991 settlement agreement.
The settlement agreement provided, in pertinent part, that:
(4) Complainant agrees that the fact of this Negotiated Settlement and
all terms contained herein shall be kept confidential, and he agrees not
to disclose or discuss the fact of settlement with other Agency employees
(except his representative and responsible management personnel).
By letter to the agency postmarked April 3, 1998, complainant alleged
that the agency was in breach of the settlement agreement. Specifically,
complainant alleged that he became aware on January 20, 1998, that the
agency had breached the confidentiality provision of item (4) of the
settlement by placing a �Notice of Suspension� in the investigative file
related to complainant's Merit Systems Protection Board (MSPB) hearing.
In its April 28, 1998 decision, the agency concluded that the April
3, 1998 breach claim was untimely because complainant had not alleged
noncompliance within thirty days of the January 20, 1998 date he became
aware of the noncompliance. On appeal, complainant asserts that, while
he knew of the information in the MSPB file on January 20, 1998, he had
not seen a copy of the settlement agreement until March 28, 1998.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement or decision, 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 the instant case, we find that the agency properly dismissed
complainant's breach claim because it was untimely raised with the agency.
Complainant admitted, both in the breach claim and on appeal, that he
became aware of the agency's action he believed was in violation of the
agreement on January 20, 1998. Although he asserts on appeal that he
only obtained possession of the July 1991 agreement on March 28, 1998,
it must be presumed that the settlement agreement was knowingly and
voluntarily agreed to by the parties and that complainant was aware of
the contents of the agreement on the date the agreement was entered into
(July 10, 1991). We note the agreement was signed by both complainant and
the agency representative on July 10, 1991. Furthermore, complainant's
attorney argues on appeal that complainant was shown a copy of the
settlement agreement on January 15, 1998. Consequently, as complainant
filed his breach claim more than 30 days beyond the January 20, 1998
date he knew of the agency action he believed was in violation of the
agreement, it was clearly untimely.
Accordingly, the agency's final decision finding complainant's breach
claim untimely is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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 (Z1199)
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
December 22, 2000
__________________
Date