0120063070
09-26-2007
Daniel Rodgers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Daniel Rodgers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01200630701
Agency No. 1C-441-0062-04
DECISION
The Commission docketed an appeal from complainant regarding his claim
that the agency had breached the terms of the August 18, 2004 settlement
agreement into which the parties entered. Complainant submitted
his appeal documents to the Commission on April 14, 2006. Within his
submission, complainant included his own statement, a statement from his
wife, and a copy of what looks to be a new complaint of discrimination
filed with the agency, also on April 14, 2006, Agency No. 1C-441-0036-06.
The accompanying 26-page narrative to Agency No. 1C-441-0036-06 includes
allegations that on February 9, 2006, among other dates, complainant's
supervisor required him to come to the agency facility and sign papers
related to his Office of Workers' Compensation Programs (OWCP) claim.
The settlement agreement of August 18, 2004, provided, in pertinent part,
that:
(1) Postal Manager will help [complainant] and his wife, who
has complainant's power of attorney, fill in any necessary postal
documentation.
(3) Given 30 minutes notice, [complainant's wife] or her designee will
come down to the postal facility and fill in any document for her husband,
[complainant].
The agency response to the docketed appeal states that complainant
neglected to notify the agency of any breach allegation, that the
allegations were raised with the incorrect agency, and that therefore
the agency has not had an opportunity to conduct an investigation
into the allegations and to issue a determination of breach decision.
The agency also argued that as it did not receive complainant's brief in
support of his appeal until May 19, 2006, and complainant was claiming
in his brief that the instances of breach occurred between August 2004
and April 13, 2006, then the notification of the breach to the agency
would be considered untimely under 29 C.F.R � 1614.504(a). It requested
that the Commission dismiss the appeal as untimely and as procedurally
defective.
After a comprehensive review of the record and the statements from both
parties on appeal, we find that we are unable to make a determination as
to whether or not the August 18, 2004 settlement agreement was breached.
As noted above, the agency did not have the opportunity to investigate
the complainant's allegations of breach and to issue a determination
of breach decision. Under 29 C.F.R. � 1614.504(a), "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."
We remand this allegation of breach to the agency to conduct an
investigation into complainant's allegations of breach, including
whether the agency was notified of the breach in a timely manner. At the
conclusion of the investigation, the agency shall issue a determination
of breach decision, which shall include appeal rights to the Commission.
ORDER
Within sixty (60) days of the date this decision becomes final, the
agency shall:
1) Determine whether complainant filed Agency No. 1C-441-0036-06 on
April 14, 2006 (or in an otherwise timely manner, based on the date of
the Notice of Right to File), and shall determine whether complainant's
accompanying narrative included allegations of breach for Agency
No. 1C-441-0062-04, such as did the copy submitted to the Commission;
2) If the complainant's filing of Agency No. 1C-441-0036-06 occurred
within 30 days of April 13, 2006, thereby making his allegations of
breach timely, the agency shall investigate the allegations of breach
and issue a determination in accordance with 29 C.F.R. � 1614.504(b).
If it was not filed in a timely manner, the agency may issue a final
agency decision dismissing the allegations, in accordance with the
provisions of 29 C.F.R. � 1614.504.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 (R0900)
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 (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:
9-26-07
______________________________
______________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120063070
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063070