0120082120
10-22-2009
Lisa C. Campbell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Lisa C. Campbell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120082120
Agency No. 4A-006-0030-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
March 3, 2008 determination that that it did not have jurisdiction over
her claim that her grievance settlement agreement was breached.
The agreement provided, in pertinent part, that:
(1) Union and Management agree to assign complainant as a Sales
and Service Associate/Distribution Clerk at the agency's Emancipation
Gardens Post Office facility.
Complainant subsequently withdrew her request for pre-complaint counseling
in EEOC Case No. 4A-006-0030-05. By letter to the agency dated December
27, 2007, complainant alleged that the agency was in breach of the
agreement, and requested that the agency specifically implement its terms.
Specifically, complainant alleged that the agency removed her from her
assignment at the agency's Emancipation Gardens Post Office facility
and impaired her work assignment at the agency's Aubrey C. Ottley Post
Office facility in violation of the settlement agreement.
In its March 3, 2008 response, the agency concluded that the settlement
agreement was a grievance resolution between the agency, the union,
and the complainant, and reasoned that it did not have jurisdiction
to review allegations of noncompliance with grievance settlements.
The agency noted that there had been a withdrawal of the referenced
complaint and not a settlement, therefore there was no EEO settlement
agreement breach. The agency advised complainant to refer any grievance
settlement concerns to the president of the union.
On appeal, complainant claims that she entered into the agreement to
expedite and prevent further EEO adjudication. Complainant claims that
she withdrew her EEO complaint in good faith because the agency's EEO
Specialist informed her that the settlement agreement was valid since the
facility's Officer-in-Charge (OIC) had signed it. She claims that her
grievance was not actually addressed because the facility's Postmaster
subsequently claimed that the agreement was not valid. As a result,
complainant claims that she has been subjected to retaliation in violation
of a previous settlement agreement. Finally, complainant referenced
and included documentation related to two previous EEO complaints and
settlement agreements.
In opposition to the appeal, the agency noted that complainant had not
submitted allegations of settlement agreement breaches regarding EEOC Case
Nos. 4A-006-0067-07 and 4A-006-0064-00, and as such the Agency had not
had an opportunity to address her claims regarding these cases prior to
her appeal. The agency, nonetheless conducted an inquiry into the cases.
The agency claims that records indicate that EEOC Case No. 4A-006-0067-07
was under investigation and pending at the hearing stage at the time.
As to EEOC Case No. 4A-006-0064-00, the agency claims that a settlement
agreement was reached on July 25, 2000. The agency found that it was in
compliance with that agreement. As to the instant appeal, the agency
claims that there was no breach of a settlement agreement because the
settlement agreement was reached through the grievance forum and not
the EEO forum. The agency requests that we affirm its final decision.
We find that complainant alleges a breach of a grievance settlement.
The proper forum to allege breach of a grievance settlement is in the
grievance process, not the EEO administrative forum. Veasley v. United
States Postal Service, EEOC Appeal No. 01A40677 (April 12, 2004).
In Berry v. Department of Commerce, EEOC Appeal No. 0120072269 (February
7, 2008), complainant and the agency entered into a grievance settlement
providing in part that complainant and the union would withdraw invocation
of arbitration, two EEO complaints, and the right to grieve, appeal,
complain, and/or litigate in any forum her removal. Complainant made
a written notice of breach to the agency's Office of Civil Rights and
was informed that it did not have jurisdiction to review allegations of
noncompliance with grievance settlements and that appropriate forum would
be the grievance process. Complainant appealed to the Commission stating
that she was not seeking enforcement, rather she wanted reinstatement
of her complaint. The Commission held that the complainant may not
use the EEO process to obtain compliance with a grievance settlement,
and dismissed the appeal for lack of jurisdiction.
In light of the above cases, we affirm the agency's determination that the
EEO process does not have jurisdiction over complainant's breach claim.1
CONCLUSION
The agency's final decision is AFFIRMED.
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
October 22, 2009_
Date
1 We note that prior to the present appeal, complainant had not presented
to the agency an allegation of a breach of a settlement agreement as to
the EEO settlement agreement dated July 25, 2000. Complainant should
contact the agency's EEO Director regarding any allegations related to
a breach of this settlement agreement. See 29 C.F.R. � 1614.504(a).
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0120082120
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082120