01991058
01-12-2000
Howard K. Gross, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Howard K. Gross v. United States Postal Service
01991058
January 12, 2000
Howard K. Gross, )
Complainant, )
)
v. ) Appeal No. 01991058
) Agency No. 4-K-200-0005-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 18, 1998, complainant filed a timely appeal with this
Commission regarding the agency's compliance with the terms of the
settlement agreement entered into by the parties on April 6, 1998.<1>
See Volume 64 Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.402);
29 C.F.R. � 1614.504(b); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
I will receive a lump sum payment for 40 hours at the current pay rate,
missed during the cited period. The Agency's representative will submit
pay adjustment forms to Payroll, within 5 days from the settlement date.
(3) I will receive a total of $255.00 as reasonable expenses incurred
per appeal.
By letter to the agency dated August 28, 1998, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that as of the date of complainant's breach allegation, the
agency had failed to provide the payments referenced in the April 6,
1998 agreement.
The agency received complainant's breach allegation in its EEO office on
August 31, 1998, but did not respond to complainant's allegation. In a
letter to this Commission dated March 31, 1999, the agency indicated that
it was in full compliance with the terms of the agreement between the
parties and provided the Commission with copies of checks made payable
to complainant as stipulated in the April 6, 1998 agreement.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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. 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).
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final decision, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
Volume 64 Fed. Reg. 37,644, 37,660 (1999)(to be codified as 29
C.F.R. �1614.504(b)) further provides that the agency has 35 days from the
receipt of a complainant's allegation of breach to resolve the matter.
The Commission has consistently interpreted that provision to mean
that an agency has 35 days within which to cure any breach that has
occurred. See Covington v. United States Postal Service, EEOC Appeal
No. 01912311 (September 30, 1991). The record indicates that the
agency received complainant's breach allegation on August 31, 1998.
In addition, the record contains a copy of a check dated September 18,
1998, in the amount of $643.57 representing 40 hours and a check dated
September 25, 1998, in the amount of $255.00 representing expenses
incurred in complainant's appeal. Upon review, we determine that the
agency's failure to provide complainant with payment within 5 days of the
date the agreement was signed would constitute breach of the agreement.
However, it is the decision of this Commission that the agency cured any
breach that may have occurred by providing complainant with checks for
the monies agreed upon in the agreement within 35 days of the agency's
receipt of complainant's breach allegation. Accordingly, the agency's
decision not to reinstate complainant's complaint is AFFIRMED for the
reasons set forth herein.
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:
Jan. 12, 2000
___________________________________
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 Equal Employment Assistant
1On November 9, 1999, revised regulations 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.