01A15156_r
12-11-2001
Mary A. Brandon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary A. Brandon v. United States Postal Service
01A15156
December 11, 2001
.
Mary A. Brandon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A15156
Agency No. 4E-852-0052-01
DECISION
Upon review, the Commission finds that the agency's decision that it
did not breach the settlement agreement that the parties had reached is
proper. See 29 C.F.R. � 1614.504. The record indicates that on February
15, 2001, the parties entered into a settlement agreement resolving
complainant's complaint. The settlement agreement provided, in pertinent
part, that complainant is willing to be loaned (�farmed out�) to other
post offices unless she stipulates otherwise in a written note. On July
12, 2001, complainant alleged that the agency breached the settlement
agreement when she was asked on June 23, 2001 and July 11, 2001 whether
she wanted to be loaned out to other offices. Complainant stated that
she provided written notice on March 3, 2001, that she would like not
to be loaned out and argues that the two subsequent requests for her to
be loaned out breached the agreement. In addition, complainant states
that the agency's repeated requests to loan her out constitute harassment.
After a review of the record, the Commission finds that complainant has
failed to show non-compliance with the February 15, 2001 agreement.
We note that the agreement did not prohibit the agency from asking
complainant whether she wanted to be loaned out, but rather stated
that where complainant provided written notification that she did not
want to be loaned out, the agency would not loan her out. Complainant
has not shown that she was loaned out in violation of the agreement.
Further, the Commission notes that claims concerning subsequent acts
of discrimination must be processed as separate complaints, not claims
of breach. See 29 C.F.R. � 1614.504(c). Therefore, complainant's claim
that the agency's requests to loan her out constitutes discriminatory
harassment does not breach the agreement, but should be processed as a
subsequent claim of discrimination. If complainant wishes to raise this
claim and has not already done so, she should contact an EEO Counselor
within fifteen days of receiving this decision. The Commission does not
address in this decision whether such a claim, if raised in a complaint
of discrimination, would be properly dismissed for failing to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's decision that it did not breach the agreement
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 11, 2001
__________________
Date