01984647
11-13-1998
Lucille E. Taylor, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lucille E. Taylor v. United States Postal Service
01984647
November 13, 1998
Lucille E. Taylor, )
Appellant, )
)
v. ) Appeal No. 01984647
) Agency Nos. 4F940113094
William J. Henderson, ) 4F940118795
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
INTRODUCTION
Appellant timely filed an appeal from the agency's final decision
regarding her breach of settlement allegations. The Commission accepts
this appeal in accordance with EEOC Order 960, as amended.
ISSUE PRESENTED
The issue presented is whether the agency properly determined that it
was in compliance with the parties' settlement agreements.
BACKGROUND
This case again is before the Commission following a remand in Taylor
v. United States Postal Service, EEOC Appeal No. 01961727 (November
18, 1996). In relevant part, the decision remanded appellant's breach
of settlement allegations after finding that the agency had failed to
address the allegations in its December 13, 1995 final decision (FAD).
In its February 19, 1997 FAD, the agency found that it was in compliance
with the agreements. Appellant then filed this appeal.
Agency No. 4F-940-1130-94
On May 26, 1994, appellant entered into an agreement with the agency
in which she agreed to withdraw her request for EEO counseling based on
the stipulation that:
I would like to be able to work my bid that I bid on in 1988. Working
routes 3311, 3313, and 3319. Working each one about equal time.
Working the same streets daily. This is what I bid for.
On a separate piece of paper, signed by appellant and three individuals
(not identified by title) on May 26, 1994, the following statement
appears:
We the undersigned agree that per Art 41 grievance settlement re:
Lucille Taylor. That the grievant's bid will consist of 4 hours office
work or approximate[ly] equal parts on routes 3311, 3313, and 3319.
And 4 hours of street work of approxi[mately] equal parts on routes 3311,
3313, and 3319. The specific blocks on 3311 will be 1990 Powell, 500
Chestnut, 2100 Powell. The specific blocks on 3313 will be 600 Broadway
and 1100 Kearney. The specific blocks on 3319 will be 200 Francisco,
SO Midway and SO Bellair.
In her prior appeal, appellant described the above statement as being
"added" to the May 26, 1994 settlement agreement.
The decision in EEOC Appeal No. 01961727 found that appellant had alleged
that she had not been allowed to work her assignment as outlined in
the EEO agreement until October 13, 1995. Because the agency failed
to address appellant's allegation, the decision remanded the matter
to the agency to determine whether it had complied with the settlement
agreement.
In the February 19, 1997 FAD, the agency found that appellant was
currently assigned to her bid position and that it therefore had not
violated the terms of the settlement agreement. Specifically, the agency
found that: appellant currently was assigned to the same bid position
effective 8/27/88; she was assigned as a Street Router 6 with 4 hours of
office work and 4 hours of street work on routes 3311, 3313, and 3319.
The agency noted that the subsequent settlement agreement on May 26,
1994 defined the specific blocks on each of the above numerical routes
and that the affidavit from the current Customer Services Supervisor
confirmed that appellant still carried the above with the exception of
two streets because of her "medical documentation."
Agency No. 4F-940-1187-95
On August 25, 1995, the parties entered into a settlement agreement in
which appellant agreed to withdraw her request for EEO counseling based
on the stipulation that:
I will be allowed to work my assignment of three routes at 2.40 minutes
per route with overtime as needed per the May 26, 1994 settlement
agreement; my CA-1 & CA-2s will be turned in as prescribed by ELM,
Section 545.3 Time Limits; I will be allowed to go to the medical unit
without completing a CA-1 when I believe I am ill; and the AWOL issued
to me for June 10 and 12, 1995 will be changed to Emergency Annual Leave.
The decision in EEOC Appeal No. 01961727 found that appellant had
raised allegations of breach with respect to: 1) her work assignment,
2) an October 24, 1995 letter of warning (LOW) , and 3) the agency's
handling of CA-2 forms. Specifically, appellant had asserted that the
settlement agreement provided for her to work her assignment 8 hours
a day "not anyone's else (sic) day to day work." Appellant complained
that: the in-office work was given to Co-worker 1; she was ordered to do
Co-worker 2's day to day assignment on route #12 while Co-worker 1 did
her assignment; on other days, she had no work to do; and management did
not timely provide the Injury Compensation Office with the CA-2 form
which she completed on November 6, 1995. Appellant appeared to have
identified the dates of the incidents as: "10-12-95 many other days
10-17-95-11-17-95."<1>
The decision in EEOC Appeal No. 01961727 found that the LOW allegation
was an allegation that a subsequent act of discrimination breached the
settlement agreement and that it was properly processed as a separate
complaint. The decision advised appellant that she should contact an EEO
counselor if she wished to pursue the matter. The decision found that
the allegations regarding appellant's work assignment and the CA forms
directly concerned the terms of the settlement agreement and remanded
these allegations to the agency for a determination as to whether it
breached the agreement.
In its February 19, 1997 FAD, the agency found that it was in compliance
with the above settlement agreement. The agency found that appellant
was assigned to her bid position in accordance with the terms of the
May 26, 1994 settlement agreement and in accordance with her medical
restrictions. The agency noted that appellant had filed 3 CA-1's on
July 21, 1995, November 20, 1995, and July 25, 1996, and that all were
submitted to the Office of Workers' Compensation Programs within the
10-day time limit prescribed in the ELM (5 days, 1 day, and 3 days).
The agency further noted that appellant was allowed to file her forms
when she believed that she had sustained an injury. Finally, the agency
noted that payroll records showed that the AWOL charges were changed to
emergency annual leave and sick leave.
On appeal, appellant disputes the agency's finding that it complied with
the settlement agreements.<2>
ANALYSIS AND FINDINGS
The issue presented is whether the agency properly determined that it
was in compliance with the parties' settlement agreements.
Appellant alleged that she had not been allowed to work her assignment
as outlined in the EEO agreement until October 13, 1995.
She asserted that the settlement agreement provided for her to work
her assignment 8 hours a day "not anyone's else (sic) day to day work."
Appellant specifically complained that: the in-office work was given to
Co-worker 1; she was ordered to do Co-worker 2's day to day assignment on
route #12 while Co-worker 1 did her assignment; on other days, she had no
work to do; and management did not timely provide the Injury Compensation
Office with the CA-2 form which she completed on November 6, 1995.
The Commission finds that following the remand, the agency's investigation
of appellant's breach of settlement allegations was inadequate and that
the agency failed to address appellant's allegations in the February
1997 FAD. The Northern California Complaints Processing Center failed
to provide the Customer Service Manager at appellant's facility with her
specific allegations of breach. The Manager stated that "[w]ithout any
specif[ic] date and incident we have not violated the agreement. It would
have been helpful if we would know what specif[ically] we had violated."
In addition, the sole agency official who provided an affidavit--the
Customer Service Supervisor--has only been assigned to appellant's
facility since August 1996. Appellant's allegations concern incidents
that occurred prior to that time. Further, appellant is not alleging that
she was not assigned to her bid route; rather, she appears to complain
that she is being asked to perform work on other employees' routes in
violation of the settlement agreements. Finally, the Commission notes
that appellant complained about a CA-2 form filed on November 6, 1995.
The agency did not address this issue.
On appeal, appellant gives extensive information regarding her
interactions with the agency since the beginning of her employment there.
To the extent that appellant has raised additional allegations, we note
that these allegations are outside the scope of the settlement agreements.
For example, appellant raises questions about the agency's handling of
a CA-1 form filed in October 1994. Because this incident occurred prior
to the parties' August 25, 1995 settlement agreement, it therefore cannot
be considered a breach of that agreement.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
REVERSE the agency's final decision.
ORDER
Within 60 (sixty) days of the date this decision becomes final, the
agency shall issue a determination as to whether it has complied with the
parties' settlement agreements. A copy of the agency's final decision
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Nov. 13, 1998
_______________ ______________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1In the December 1995 FAD, the agency defined appellant's allegation as
follows:
[O]n October 12-17, 1995 and November 6, 13, 20, 1995, you allege the
following: You were not allowed to work your (sic) and you were ordered
to work on route #12, you allege management is not allowing you to work
8 hours daily in violation of the settlement agreement, and management
has not provided the Injury Compensation Office with the CA-2 that you
filed on November 6, 1995.
2Appellant has repeatedly complained of sexual harassment by a co-worker
and asserted that management officials never responded to her written
complaints. It is unclear whether appellant filed an EEO complaint
on this matter, although it may have been addressed as part of a
grievance. The agency is reminded of its responsibility to investigate
such allegations if it has not already done so. See generally EEOC Policy
Guidance On Sexual Harassment, Order No. N-915-050 (March 19, 1990).