01a44560
01-18-2006
Hellene L. Heath v. United States Postal Service 01A44560 January 18, 2006 . Hellene L. Heath, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Hellene L. Heath v. United States Postal Service
01A44560
January 18, 2006
. Hellene L. Heath,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44560
Agency No. 1G-753-0127-01
DECISION
Complainant appealed the agency's August 25, 2004 decision not to
reinstate complainant's complaint of unlawful employment discrimination
that the parties had settled. EEOC Regulation 29 C.F.R. � 1614.504(a)
provides that if the complainant believes that the agency failed to
comply with the terms of a settlement agreement, the complainant should
notify the EEO Director, in writing, of the alleged noncompliance
with the settlement agreement, within thirty (30) days of when the
complainant knew or should have known of the alleged noncompliance.
The complainant may request that the terms of the settlement agreement
be specifically implemented or, alternatively, that the complaint be
reinstated for further processing from the point processing ceased.
The record indicates that on March 17, 2003, the parties entered into a
settlement agreement resolving complainant's complaint. The settlement
agreement provided, in pertinent part, that:
The agency agrees to make a good-faith effort to research the issues
addressed in the Redress II meeting on 3-17-03. This issues are: (1)
salary from years 1990 to 1992; (2) insurance premium for years 1992,
�93, �94, and �95; (3) whether the insurance premium payments were made
from 1990 to present; (4) to determine whether the USPS was negligent
in providing W-2 information for the timely filing of refunds with the
IRS for years 1990, �91, and �92.
In addition, the USPS agrees to:
1. Contact [an identified individual], U.S. Department of Justice,
Tax Division, to determine if there's anything USPS can provide
the Dept. of Justice to assist in resolving the lawsuit, and in the
reimbursement of overpaid taxes.
2. Contact the Dept. of Labor (DOL) to make a good-faith effort to
verify [complainant's] OWCP compensation in its entirety.
3. That [an identified individual], USPS Labor Relation's, will contact
[complainant] within 30 days of the signing of this agreement with a
status report of all research findings to date.
Thereafter, on February 17, 2004, complainant alleged that the agency
breached the settlement agreement. Complainant, without citing any
specific provisions of the settlement agreement, indicated that,
�Everyone signing the document heard [an identified individual] state
she refused to give me my payroll checks June 1990 because of management
instructions.� Complainant stated that this was retaliation against her
because she filed an OWCP claim in May 1990. The record indicates that
complainant sustained an on-the-job injury in September 1988, and her
workers' compensation claim was approved in May 1990. Complainant last
worked for the agency in June 1992, and her last day in pay status was
in January 1993. The record also indicates that in September 2001, the
agency completed complainant's removal from its employee's roles effective
August 1999, because of her prolonged absence (8 years). In response to
complainant's alleged breach claim, the agency stated that complainant's
breach claim was untimely and it did not breach the settlement agreement.
The record indicates that on July 21, 2003, the agency, in response to
a Congresswoman's letter dated May 1, 2003, concerning the agency's
compliance with the settlement agreement at issue, stated that it
complied with the settlement agreement. Therein, the agency stated
that it contacted the Department of Justice on June 2, 2003, and was
informed that there was nothing the agency could do to assist complainant
in her tax matters. Since a representative of the Tax Division did not
accept complainant's reason for failing to file her taxes, her case was
still pending. The agency also stated that a review of complainant's
OWCP records had been conducted and her compensation was correct and her
insurance premiums for 1992, 1993, 1994, and 1995, were paid correctly.
The agency indicated that an agency representative attempted to contact
complainant via telephone, but she was not available; thus, a copy of
this letter, including the foregoing findings regarding OWCP records,
would be forwarded to her.
After a review of the record, the Commission finds that complainant
knew or should have known of the alleged noncompliance prior to her
sending the letter to the above-referenced Congresswoman in April 2003.
It appears that complainant, instead of notifying the EEO Director,
wrote the alleged noncompliance letter to the Congresswoman. Furthermore,
the record indicates that on July 21, 2003, the agency sent its letter to
the Congresswoman, as well as complainant, asserting its compliance with
the settlement agreement. After a review of the record, the Commission
finds that complainant's breach claim filed with the agency on February
17, 2004, was untimely. Complainant knew or should have known of the
alleged breach more than 30 days before her February 17, 2004 letter
to the agency alleging breach. It is noted that complainant's claim
concerning an identified person's remark during the settlement agreement
in retaliation for her OWCP claim of May 1990, is beyond the purview of
the settlement agreement. Furthermore, it is noted that complainant
raises matters on appeal that are not within the purview of the settlement
agreement or concern matters that are already resolved through the
instant settlement agreement. Finally, even if complainant's breach
claim was timely raised, we find that complainant failed to indicate
what specific provision of the settlement agreement was breached or how
any provision has not been complied with by the agency.
Accordingly, the agency's decision finding no breach of the settlement
agreement is AFFIRMED.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 18, 2006
__________________
Date