01991087
12-17-1999
Harold Staley, Jr. Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Harold Staley, Jr. )
Complainant, )
)
) Appeal No. 01991087
) Agency No. 4-J-481-1157-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DISMISSAL OF APPEAL
A review of the record reflects that on March 24, 1997, complainant
entered into an agreement with the agency which provided as follows<1>:
Management will comply with all future requests for official time to
prepare for an EEO complaint in accordance with 29 C.F.R. �1614.605. All
requests for EEO time shall be accompanied by notification of a scheduled
appointment or event in advance for staffing purposes. [Complainant] shall
be paid for 1 � hours at time and a half in settlement of referenced
case. There are no other terms or conditions of this settlement and
none shall be implied.
On November 17, 1998, complainant filed an appeal with this Commission
alleging that the agency had failed to comply with the March 24, 1997
agreement between the parties. In response to complainant's appeal,
the agency issued correspondence to the Commission dated December 29,
1998 indicating that complainant had failed to bring his settlement
breach allegation to the attention of its EEO office, as required by
EEOC Regulations.
In 64 Fed. Reg. 37,644, 37, 660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.504(a)), the regulations provide that if
the complainant believes that the agency has failed to comply with the
terms of a settlement agreement, then the complainant shall notify the
EEO Director of the alleged noncompliance �within 30 days of when the
complainant knew or should have known of the alleged noncompliance.�
EEOC Regulation 29 C.F.R. �1614.504(b), further provides that the agency
shall resolve the matter and respond to the complainant in writing.
If the agency has not responded to the complainant, in writing,
or if the complainant is not satisfied with the agency's attempt to
resolve the matter, the complainant may appeal to the Commission for a
determination as to whether the agency has complied with the terms of
the settlement agreement or final decision. The complainant may file
such an appeal within thirty-five days after he has served the agency
with the allegations of non-compliance but must file an appeal within
thirty days of his receipt of the agency's determination.
In this case, complainant failed to notify the agency of its alleged
non-compliance, as required by EEOC Regulations. Therefore, complainant's
appeal to the Commission is premature. See Foster v. Department of
Veterans Affairs, EEOC Request No. 05930046 (June 4, 1993). Complainant
must first notify the agency of his allegation of non-compliance so the
agency may attempt to resolve the matter at the agency level, before the
Commission can properly act upon her request. Accordingly, complainant's
appeal is DISMISSED WITHOUT PREJUDICE.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
Dec. 17, 1999
_____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
DATE 1On November 9, 1999, revised regulation governing
the EEOC's federal sector complaint process went into effect.
These regulations apply to all Federal sector EEO complaints
pending at any stage in the administrative process. Consequently,
the Commission will apply the revised regulations found at
64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found
at the Commission's website at WWW.EEOC.GOV.