Danilo S. Angeles, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 6, 2009
0120090317 (E.E.O.C. Mar. 6, 2009)

0120090317

03-06-2009

Danilo S. Angeles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Danilo S. Angeles,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090317

Agency No. 4E-570-0014-07

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated September 25, 2008, finding that

it was in compliance with the terms of the March 27, 2007 settlement

agreement into which the parties entered. See 29 C.F.R. � 1614.402;

29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement only contained one settlement term requiring

action by the agency, other than a confidentiality clause, i.e., a promise

to "directly address issues brought up and address inappropriate behavior

as stated in the zero tolerance policy." In exchange, complainant

withdrew EEO case number 4E-570-0014-07.

By letter to the agency dated August 3, 2008, complainant alleged that the

agency was in breach of the settlement agreement, and requested that it

be declared null and void and his EEO case be reinstated. Complainant

averred that the agency did not implement the settlement agreement.

The FAD, which recounted in part alleged breaches raised orally by

complainant, detailed examples such as all employees not being treated

fairly and equally regarding breaks, not selecting acting supervisors

from a leadership skills bank, gossiping, harassment, and so forth.

Some of these concerns were about how his spouse was treated.

In its September 25, 2008 FAD, the agency concluded that it complied

with the settlement agreement. Generally, it found that it promptly

addressed the matters raised which were covered by the settlement

agreement, and that some matters were not covered by it.

We find that the settlement agreement promise to directly address issues

brought up and address inappropriate behavior as stated in the zero

tolerance policy is too vague to allow a determination as to whether

it was complied with by the agency. See Bruns v. United States Postal

Service, EEOC Appeal No. 01965395, 1997 WL 377836 (June 24, 1997).

We therefore find the settlement agreement is void and unenforceable.

On remand, the agency shall treat the August 3, 2008, notice of breach

as a request for EEO counseling, and counsel complainant and process

the matter in accordance with 29 C.F.R. � 1614.105(b)(1)

et seq.

ORDER

The agency is ordered to reinstate EEO case 4E-570-0014-07 and process it

from the point processing ceased in accordance with 29 C.F.R. Part 1614.

The agency shall treat the August 3, 2008, notice of breach as a request

for EEO counseling, and counsel complainant and process the matter in

accordance with 29 C.F.R. � 1614.105(b)(1) et seq. The agency shall

consolidate the claims raised in EEO case 4E-570-0014-07 with any

formal claims arising out of the August 3, 2008 contact. The agency

shall acknowledge to the complainant that it has received the remanded

claims within thirty (30) calendar days of the date this decision

becomes final.

A copy of the agency's letter of acknowledgment to complainant must be

sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 (M1208)

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 (R0408)

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 (Z1008)

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

March 6, 2009

__________________

Date

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0120090317

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090317