01990575_r
11-18-1999
Mary A. Kress, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mary A. Kress, )
Appellant, )
)
v. ) Appeal No. 01990575
) Agency No. 4H-335-0194-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision not to reinstate
her complaint of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. �1614.402(a); EEOC Order No. 960, as amended.
The record reflects that appellant initiated the EEO complaint process
on March 12, 1998, on the issue of being constantly singled out because
she is on limited duty.
On April 20, 1998, appellant and the agency settled the complaint.
The settlement agreement contained, in pertinent part, the following
provision:
1. [A named agency official] agrees to strongly consider having
[appellant] work scheduled days off depending on the needs of the station
and her restrictions as noted in her most current CA-17.
By letter dated July 2, 1998, appellant alleged that the agency breached
provision 1 of the settlement agreement. Specifically, appellant alleged
that the agency official named in provision 1 of the agreement has not
communicated with any agency Supervisors concerning the possibility
of appellant working overtime. Appellant further alleged that four
days after the settlement agreement went into effect, the named agency
official encouraged her to pursue the EEO complaint process.
On September 24, 1998, the agency issued a final decision, finding no
breach of the settlement agreement of April 20, 1998. Specifically,
the agency determined that an agency overtime document reflected that
appellant worked overtime on July 22, 1998, and on August 8, 1998.
The agency noted that the settlement agreement did not provide that
overtime would be assigned to appellant at her request; rather, it may
be assigned �when it is in the best interest of the service.�
On appeal, appellant acknowledges that an agency official provided her
with two overtime opportunities, as noted in the final agency decision of
September 24, 1998. Appellant argues, however, that the agency official
who provided her with those overtime assignments did not do so at the
behest of the Manager cited in provision 1 of the settlement agreement;
and that the agency Manager had not discussed with the agency official
the possibility of assigning appellant overtime.
In response, the agency offers no new arguments.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement, the complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30
days of the date when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
The Commission finds that there is no evidence in the record to
support appellant's claim that the agency breached provision 1 of the
settlement agreement. The only affirmative obligation set forth in
provision 1 provided that a named agency official strongly consider
permitting appellant to work scheduled days off depending on the needs
of the station where she is employed, as well as the restrictions set
forth in her most current CA-17. The agency notes that appellant was
provided two overtime assignments in July and August 1998; and on appeal,
appellant acknowledges that she received these assignments. Accordingly,
the Commission determines that the agency's finding of no settlement
breach was proper and is AFFIRMED.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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:
November 18, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations