01a60761_r
04-20-2006
Daniel W. McManaway, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel W. McManaway v. United States Postal Service
01A60761
April 20, 2006
.
Daniel W. McManaway,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60761
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision dated September 29, 2005, finding that it complied with
the terms of a March 16, 2005 settlement agreement. The Commission
accepts the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The March 16, 2005 settlement agreement provided that:
Both parties agree to readjust additional duties to benefit all employees
concerned. Management will ensure duties are to be performed by the
employees who bid on the specific assignment. Additional duties assigned
will be assigned equitably and fairly.
By letter to the agency dated August 23, 2005, complainant claimed breach
and requested that the agency reinstate his underlying EEO complaint as
provided by 29 C.F.R. � 1614.504. Specifically, complainant claimed
that the agency allowed a co-worker to come to work out of uniform;
relieved her of window clerk work; and reassigned her additional duties
to another worker, thereby violating the above referenced provision.
In its September 29, 2005 final decision, the agency found no breach.
The agency acknowledged that there had been minor changes to numerous
positions. However, the agency found that all agency actions comported
with the collective bargaining agreement and supported operational
efficiency. The agency found that the language of the settlement agreement
"supports management maintaining the efficiency of the operations
entrusted to it."
The Commission determines that the terms of the settlement agreement are
too vague and generalized to be enforced. Moreover, the agency's final
decision suggests that the agency has incurred no obligation beyond
what it is already obligated to do, i.e., act in accordance with the
collective bargaining agreement and promote operational efficiency.
Accordingly, we find that the settlement agreement is void for a lack
of consideration. Therefore, we determine that the underlying complaint
must be reinstated at the point at which processing ceased. See Bush
v. U.S. Postal Service, EEOC Appeal No. 01A11640 (August 8, 2002).
Accordingly, for the reasons set forth above, we VACATE the agency's
final decision, and we REMAND the case to the agency with instructions
to reinstate his underlying complaint at the point at which processing
ceased, as more fully set forth in the ORDER below.
ORDER
The agency is ORDERED to resume processing of complainant's underlying
complaint from the point where processing ceased. The agency shall
acknowledge to complainant that it has reinstated and resumed processing
of complainant's complaint.
A copy of the agency letter of acknowledgement must be sent to the
Compliance Officer as referenced below.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 20, 2006
__________________
Date