0520100057
01-22-2010
Nestor L. Lopez-Rincon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Nestor L. Lopez-Rincon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Request No. 0520100057
Appeal No. 0120081369
Agency No. 4H-327-0108-07
DENIAL
Complainant timely requested reconsideration of the decision in Nestor
L. Lopez-Rincon v. U.S. Postal Service, EEOC Appeal No. 0120081369
(September 25, 2009). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
The record reflects that on May 29, 2007, complainant and the agency
entered into a settlement agreement that provided, in pertinent part,
that:
* Effective five (5) months from the date of this settlement,
complainant's Route No. 31 will be rebuilt to the level of 40K if it
has not yet reached that level; and
* Effective nine (9) months from the date of this settlement,
complainant's Route No. 31 will be rebuilt to the level of 43K if it
has not yet reached that level.
By letter to the agency dated November 8, 2007, complainant alleged that
the agency was in breach of the settlement agreement when it failed to
rebuild his route to the 40K level by October 29, 2007. He alleged that,
as a result of the breach, he lost two days of pay and would continue
to lose one day each week because he was working a six day week instead
of a five day week.
On August 7, 2008, the agency issued its final determination finding
that it was in compliance with the terms of the settlement agreement.
The agency determined that complainant's route was rebuilt to the 42K
level on November 24, 2007; after an inspection, his route was changed
from a 42K route to a 48K route effective April 26, 2008; he received
the difference in pay between the 40K and 42K route from October 27,
2007 to November 26, 2007; he received the difference between a 42K and a
43K route from February 29, 2008 to April 26, 2008; and he was paid for
a 48K route thereafter. The agency also determined that he was granted
four days off without pay due to his allegation that he lost four days
by having to work a six day schedule.
On appeal, the Commission affirmed the agency's determination that no
breach of a settlement occurred, finding that the agency substantially
complied with the terms of the agreement. Specifically, the Commission
found no evidence that the agency's delay in compensating complainant at a
42K route rate and later at a 48K route rate was the result of bad faith
or undermined the purpose or effect of the agreement. The Commission
also rejected complainant's contention that he did not agree to be paid
at a lower rate than that of a 48K route, noting that the language of
the agreement was "clear and unambiguous" on its face.
In his request for reconsideration, complainant argues that the Commission
erred in affirming the agency's final determination. Complainant argues
that the Commission improperly assumed that he could have requested a
route that was higher than a 43K route at the time of the settlement
agreement and notes that he was actually given four days off with pay
rather than four days off without pay. Complainant argues that he was
limited to demanding a 43K route because a 43K route is stated within
a national contract as the "target route;" the agency intentionally
delayed its compliance with the terms of the settlement agreement; and
the agency built his route in the settlement agreement as a 43K route
when it should have been a 48K route.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. We find that complainant is raising the same arguments
made on appeal. A request for reconsideration is not a second appeal.
The Commission's decision properly found that the agency substantially
complied with the terms of the settlement agreement and that complainant
was free to negotiate different terms at the time of the agreement.
Accordingly, the decision in EEOC Appeal No. 0120081369 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
_______1/22/10___________
Date
2
0520100057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520100057