0120072978
09-18-2007
Michael J. Gibson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael J. Gibson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072978
Agency No. 4H-300-0125-05
DECISION
Complainant filed a timely appeal with this Commission, in accordance
with 29 C.F.R. � 1614.504(b), for a determination as to whether the
agency has complied with the terms of a settlement agreement that the
parties entered on July 12, 2006.
The settlement agreement provided, in pertinent part, that complainant
would be "[r]estored 128 hours of Leave [and t]emporarily assigned
to the Fayetteville GA Post Office as a custodian, beginning Monday
July 17, 2006 for approximately a period of 3 months." On October 12,
2006, complainant sent a letter to the agency's Atlanta District Human
Resources Manager indicating that the management official who signed the
July 12 agreement failed to uphold the agreement and seeking assistance
in its enforcement. Further, the record indicates that, as early as
March 23, 2007, the agency was aware that complainant contacted his
congressional representative and the Merit Systems Protection Board
regarding his allegation of noncompliance. The agency did not respond
to complainant's allegation of breach of the July 12, 2006 agreement.
On June 19, 2007, after receiving no determination from the agency
regarding his claim of breach, complainant filed an appeal with this
Commission. The Commission docketed complainant's appeal and identified
it as Gibson v. U.S. Postal Service, EEOC Appeal No. 0120072978. Further,
in a letter dated June 21, 2007, this Commission informed the agency
of complainant's appeal. The agency has not responded to complainant's
appeal.
Pursuant to EEOC Regulation 29 C.F.R. 1614.504(b), a complainant may file
an appeal with the Commission for a determination regarding whether the
agency has complied with the terms
of a settlement agreement thirty-five days after serving notice to
the agency, when the agency fails to respond to the notice of breach.
Accordingly, complainant's appeal is accepted. However, due to the
fact that there is insufficient information in the record to determine
whether the agency breached the July 12, 2006 settlement agreement,
we must REMAND the matter to the agency for a written response to
complainant's allegation. See 29 C.F.R. � 1614.504(c).
ORDER
The agency is ordered to process complainant's instant allegation
of breach in accordance with 29 C.F.R. � 1614.504(b), including but
not limited to issuing a written response. The agency shall provide
complainant with its written response, with appeal rights to the
Commission, addressing his allegations of noncompliance within thirty-five
(35) calendar days of the date this decision becomes final.
A copy of the agency's written response to complainant must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 18, 2007
__________________
Date
Date
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0120072978
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072978