Howard K. Gross, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 12, 2000
01991058 (E.E.O.C. Jan. 12, 2000)

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.