0120090436
03-31-2009
James E. Fowler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James E. Fowler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090436
Agency No. 1H374006201
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 10, 2008, finding that he
had failed to file his breach claims in a timely manner or alternatively
that it was in compliance with the terms of the June 15, 2003 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(a), (b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
1(a) The agency will pay and complainant will accept the lump
sum of $750.00...
1(b) ...the complainant will get an updated medical form listing his
restrictions (CA-17) regarding his medical status and he
will file the necessary documents needed by OWCP...
1(c) The agency will detail the complainant into the Vehicle Operations
Assistant (VOA) position for the purpose of training not to exceed 30
days or 160 work hours...
1(d) The complainant is required to meet all the requirements of the VOA
detail position including but not limited to typing test and other tests.
1(e) The agency will detail the complainant into the Transportation
Network Specialist position for the purpose of training not to exceed
30 days or 160 work hours...
1(f) Details listed in this agreement will begin at management
discretion, but will begin within 6 months from the date that
complainant supplies the agency and OWCP with the necessary updated
medical documentation regarding his restrictions.
By letter to the agency dated August 12, 2008, complainant argued, inter
alia, that provisions 1(e) and 1(f) of the agreement were violated.
In both his correspondence to the agency's attorney and in his October
7, 2008 telephone conversation with the agency's EEO Investigator,
complainant alleged that the agency failed to comply with provision 1(e)
of the settlement agreement when two co-workers were trained instead of
him in the detail position as a Transportation Network Specialist since
an unspecified date in 2005 to present date. Complainant further alleged
that provision 1(f) of the agreement was violated when he did not begin
the VOA detail of provision 1(c) until an unspecified date in 2005.
In its FAD, the agency asserted that in accordance with 29 C.F.R. �
1614.504(a), allegations of noncompliance of settlement agreements must
be made in writing "within 30 days of when the complainant knew or should
have known of the alleged noncompliance." Complainant's breach claims
indicate that he was aware of the alleged non-compliance since 2005,
and ongoing, yet failed to lodge a written allegation of noncompliance
until August 12, 2008, a minimum of at least two years beyond the 30-day
requirement. Therefore, the agency concluded, complainant has failed
to file his breach allegations in a timely manner.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
finding that complainant failed to file his breach claims in a timely
manner.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 31, 2009
__________________
Date
2
0120090436
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120090436