01a00901
07-17-2000
Kenneth R. Winkler, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kenneth R. Winkler v. United States Postal Service
01A00901
July 17, 2000
Kenneth R. Winkler, )
Complainant, )
)
v. )
) Appeal No. 01A00901
William J. Henderson, ) Agency No. 1-J-461-0081-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 3, 1999, complainant filed a timely appeal with this
Commission from an agency's decision pertaining to his complainant
of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> The Commission accepts the appeal in accordance with 64
Fed. Reg. 37,644,37,659 (1999) (to be codified at 29 C.F.R. �1614.405).
Complainant contacted the EEO office claiming he suffered discrimination
based on retaliation. In an Information for Precomplaint Counseling form,
complainant claimed that he had been instructed to file the incorrect
forms relating to a claim filed with the United States Department of
Labor; and that he discovered a letter in his file regarding prior
EEO activity. As relief, complainant requested that his �original EEO
case� be reopened Informal efforts to resolve complainant's concerns
were unsuccessful.
Subsequently, on July 23, 1999, complainant filed a formal complaint.
In his formal complaint, complainant stated that he �had filed an
EEO action to gain employment. This was in my injury comp file � a
violation of my settlement agreement.�
On September 28, 1999, the agency issued a decision dismissing the
complaint for failure to state a claim. The agency first determined
that the complaint was comprised of the claim that in March 1999,
complainant became aware of problems with his OWCP [Office of Workers
Compensation] claim. The agency then determined that an employee's
remedy for an injury incurred in the course of employment is exclusively
governed by the Federal Employee's Compensation Act (�FECA�). Moreover,
the agency determined that a claim under FECA is not is not reviewable
by the EEOC.
On appeal, complainant reiterates that the agency's purported actions
breached a settlement agreement he entered with the agency in resolution
of a prior complaint.
The Commission notes that while the agency addressed the matter raised in
the instant complaint in terms of failure to state a claim, complainant
has raised the matter of settlement breach throughout the EEO complaint
process, including on appeal from the agency's decision.
Specifically, we note that in his formal complaint and on appeal,
complainant has alleged breach of settlement agreement. According to
complainant, the agency failed to comply with the agreement when it
disclosed his prior EEO case to the Department of Labor. The formal
complaint reveals that complainant has requested that his �original EEO
case [be] reopened.� The agency has not addressed the claim of breach
nor is a copy of the settlement agreement included in the record.
Consequently, we find that complainant's claim of settlement breach
must be remanded for the agency to properly address. Accordingly, the
agency's decision is VACATED. Complainant's breach claim is REMANDED
to the agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Within thirty (30) days of the date that this decision becomes final,
the agency shall issue a new final decision addressing complainant's claim
of breach of the settlement agreement. A copy of the agency's new final
decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
July 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.