01981141_r
11-25-1998
Dennis D. Davey, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis D. Davey, )
Appellant, )
) Appeal No. 01981141
v. ) Agency No. 1F-921-0001-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision not to reinstate
his complaint of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. ��1614.402, .504(b); EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
A review of the record reveals that appellant filed a formal EEO complaint
on November 4, 1996, alleging that he had been subjected to unlawful
discrimination on the basis of sex (male). The agency initially accepted
appellant's complaint for processing, and conducted an investigation.
Prior to a hearing being held, appellant and the agency settled the
complaint on July 2, 1997. The settlement agreement provided, in
pertinent part, that:
In settling this complaint, the following is agreed to:
As operationally feasible [appellant] will be allowed to work his job
assignment #8647278 Operation 030/040 and will not be displaced from
his bid assignment by employees who do not hold a bid on those operations.
By letter to the agency dated July 29, 1997, appellant alleged that the
agency had breached the settlement agreement and that the breach was
retaliatory. Appellant asserted that on July 16-18 and 22-24, 1997,
management placed non-bid employees in appellant's job assignment,
thus forcing appellant to work outside of his bid assignment.
In its final decision dated October 24, 1997, the agency declined to
reinstate appellant's complaint, finding that it had not breached the
settlement agreement. In a letter dated September 29, 1997, the agency
asserted that subsequent to appellant's allegation of breach, his manager
and supervisor were provided copies of the settlement agreement for the
first time. Thereafter, the agency contended that it was in compliance
with the agreement.
On appeal, appellant contends that he was also displaced from his bid
assignment on at least twenty (20) other occasions between July 29,
1997 and September 17, 1997. Further, appellant disputes the agency's
failure to process allegations that the breach actions were taken in
retaliation for his prior EEO activity.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties,
reached at any stage of the complaint process, shall be binding on
both parties. In addition, the Commission has held that a settlement
agreement constitutes a contract between the employee and the agency,
to which ordinary rules of contract construction apply. See Herrington
v. Department of Defense, EEOC Request No. 05960032 (December 9, 1996).
Pursuant to 29 C.F.R. �1614.504(b), an agency has 35 days from the
receipt of an appellant's allegation of breach to resolve the matter.
The Commission interprets that provision to mean that an agency has 35
days within which to cure any breach that has occurred. See Covington
v. USPS, EEOC Appeal No. 01912311 (September 30, 1991). In the instant
case, the record indicates that appellant was not displaced from his
bid assignment after he submitted allegations of breach. We find,
therefore, that although the agency was in breach of the agreement,
it took the necessary steps to cure that breach within the requisite
time provided by 29 C.F.R. �1614. Consequently, the agency's decision
not to reinstate appellant's prior complaint was proper.
Finally, we note that appellant alleged that the breach actions were
taken to retaliate against him for pursuing the EEO process. We note,
however, that breach allegations are not processed as new complaints,
but rather in accordance with 29 C.F.R. �1614.504. Consequently, we
find that the agency properly addressed appellant's concerns in terms
of a breach allegation and not as a new allegation of discrimination.
See McGrath v. USPS, EEOC Request No. 05920890 (January 21, 1993).
CONCLUSION
Accordingly, the agency's decision not to reinstate appellant's complaint
is AFFIRMED for the reasons set forth herein.
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. �l6l4.604(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:
November 25, 1998
______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations