Dennis Thompson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 13, 2000
01984700 (E.E.O.C. Jul. 13, 2000)

01984700

07-13-2000

Dennis Thompson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Dennis Thompson v. United States Postal Service

01984700

July 13, 2000

Dennis Thompson, )

Complainant, )

)

v. ) Appeal No. 01984700

) Agency No. 4-H-330-1404-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant filed an appeal with this Commission from an agency's decision

dated April 16, 1998 notifying complainant that �no action [will be]

taken by this office to open your complaint�, because his breach of

settlement claim concerned an agreement reached during the discussion

of a grievance. The Commission determines that in its decision, the

agency in essence dismissed the claim. The Commission accepts the appeal

in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at

29 C.F.R. 1614.405).

The settlement agreement, in resolution of a grievance filed by

complainant, provided in pertinent part, that:

Posting and filling of positions will be accomplished in accordance with

the applicable provisions of the Collective Bargaining Agreement.

The agreement was identified as a �pre-arbitration settlement� in

resolution of a grievance filed by complainant (No. U9S-0391-CS); and was

addressed to the General President of the American Postal Workers Union,

Miami Area Local.

By letter to the agency dated March 21, 1998, complainant alleged that the

agency was in breach of the settlement agreement. Complainant requested

that the agency provide him lost annual leave and pay.

In the instant case, complainant alleged that the agency has not complied

with the March 5, 1997 settlement agreement in resolution of a grievance

he had filed. The Commission has held that a complainant may not

use the EEO process to obtain compliance with a grievance settlement.

See Quezada v. United States Postal Service, EEOC Request No. 05930175

(August 12, 1993). The Commission finds that complainant is attempted to

use the EEO process to obtain compliance with the agreement reached during

the settlement of a grievance. The Commission determines that because

the sole issue here is whether the agency breached the pre-arbitration

settlement, we find that determination is best left to the grievance

process within which the grievance settlement was initially reached.

See McElreath v. USPS, EEOC Appeal No. 01934189 (November 9, 1993).

Such a claim is outside the purview of the EEO process. Accordingly,

the agency's decision to dismiss complainant's claim was proper and is

hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 13, 2000 ____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations