0120120515
04-13-2012
Irene C. Tritz, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Irene C. Tritz,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120120515
Agency No. 6E-000-0003-11
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from (1) an Agency Letter of Determination dated October 4, 2011, dismissing her claim that the Agency breached two settlement agreements, and (2) from a final Agency decision (FAD) dated October 21, 2011, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time she pursued EEO counseling and filed her claims, Complainant was a retired Postmaster.
In November 1991, the parties settled civil action number SA CV 87-8088 which Complainant filed in the United States District Court for the Central District of California. The settlement agreement was filed with the Court. A record excerpt thereof indicates that the Agency, in part, agreed to promote Complainant to an EAS-22, pay her a back pay lump sum of $40,694.28, and made no representations as to the taxability of the lump sum.
Complainant filed another civil action against the Agency with the above Court, civil action number 8:04-cv-00858. After a jury verdict in her favor, on October 27, 2005, the District Court Judge entered a judgment for Complainant in the amount of $275,000. We take administrative notice that on February 14, 2006, Complainant settled this civil action, and all other claims against the Agency, including administrative EEO complaints. In exchange, the Agency agreed to pay Complainant $225,000. In the settlement agreement the parties agreed that this was the entire monetary amount due and characterized the payment as damages for emotional distress and injury. The settlement agreement was filed with the District Court, and pursuant thereto, the District Court Judge dismissed civil action 8:04-cv-00858 with prejudice.
On or about November 4, 2009, Complainant requested EEO counseling, and shortly thereafter filed an intake form alleging that she was discriminated against when the Agency breached the settlement agreements. While Complainant did not make it clear in intake, she was referring to the District Court settlements of 1991 and 2006. In April 2010 the Agency asked Complainant to provide more information on her claims of breach. Complainant explained that the Agency breached the 1999 settlement agreement by not raising her pay level to EAS level 24, highest step, and by notifying the Internal Revenue Service (IRS) of the award as taxable. She alleged that the Agency breached the 2006 settlement agreement by treating her monetary award as taxable earned income.
The Agency took no further action, and in June 2011 Complainant contacted the Agency's EEO Contact Center and filed another intake form alleging discrimination on the Agency not processing her November 2009 claim. After receiving EEO counseling on this matter, Complainant filed a formal complaint on September 28, 2011, alleging that she was discriminated against based on her sex, disability, and reprisal for prior protected EEO activity when the Agency did not process her November 2009 claim.1
In its October 4, 2011, Letter of Determination, the Agency dismissed Complainant's administrative breach claims. Citing Commission precedent, the Agency reasoned that the Commission had no jurisdiction over alleged breaches involving District Court settlements.2
In its FAD dated October 21, 2011, the Agency dismissed Complainant's complaint for (1) alleging dissatisfaction with the processing of a previously filed complaint, 29 C.F.R. � 1614.107(a)(8); (2) alleging a matter that is the basis of a civil action, 29 C.F.R. � 1614.107(a)(3), and (3) failure to state a claim, 29 C.F.R. � 1614.107(a)(1).
On appeal, Complainant argues that the Agency improperly dismissed her complaint. She argues that 29 C.F.R. � 1614.108(a)(8) does not apply because there was no processing, not improper processing; that 29 C.F.R. � 1614.107(a)(3) does not apply because the processing claim is not in District Court; and the complaint states a claim because she is aggrieved.
In opposition to the appeal, the Agency urges the Commission to affirm the FAD.
ANALYSIS AND FINDINGS
The Commission does not have jurisdiction to enforce a settlement agreement made in the District Court process. These settlement agreements were filed with the United States District Court for the Central District of California. Any claims of breach on the 1991 and 2006 settlement agreements should be pursued with the above Court. Jones v. United States Postal Service, EEOC Appeal No. 01A31600 (April 29, 2004). Accordingly, the Agency's Letter of Determination dismissing Complainant's administrative breach claims is affirmed.
The Agency properly dismissed Complainant's complaint about failure to process. Her claim that the Agency ignored her informal complaint is still a processing issue, i.e., failure to process. While the Complainant did not file a civil action about failure to process the above breach claims, the underlying claim is still the basis of a civil action, i.e., Court based settlement agreements. Further, claims about dissatisfaction with EEO processing fail to state a claim of employment discrimination.
CONCLUSION
The Agency's Letter of Determination dated October 4, 2011, and FAD dated October 21, 2011, are AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 13, 2012
__________________
Date
1 The Agency more narrowly defined the complaint as not responding to Complainant's May 2010 inquiries about the matter. The definition above better captures the complaint.
2 The record contains the District Court judgment of 2005, but not the connected settlement of 2006. The Agency's Letter of Determination referred to the 2005 judgment, not the 2006 settlement agreement, and applied the same law regarding lack of jurisdiction. The 2006 District Court settlement is available online via LexisNexus CourtLink.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120120515
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120515