01a03627
02-01-2001
Phonesa M. Mitchell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Phonesa M. Mitchell v. United States Postal Service
01A03627
February 1, 2001
.
Phonesa M. Mitchell,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03627
Agency No. 1G-741-0027-00
DECISION
Complainant filed a timely appeal with this Commission claiming that
the agency failed to comply with the terms of the February 22, 2000
settlement agreement into which the parties entered.
The settlement agreement provided the following:
My settlement for all EEO complaints is to transfer to customer service
as a distribution clerk.
My station preference are as follows:
1) Chimney Hills- 91st [and] Sheridan
Southside and 71st [and] Lewis
Within 2 weeks.
By letter to the agency dated March 7, 2000, complainant alleged that
the agency breached the settlement agreement. Complainant alleged that
the agency failed to transfer her to customer service at one of her
preferred locations as indicated in the settlement agreement.
On March 15, 2000, the agency issued a decision stating that it had
inadvertently failed to implement the terms of the settlement agreement
and that in the next few days, complainant would be placed in a Tulsa
station as a distribution clerk. On April 11, 2000, the agency issued a
subsequent decision finding that it was not in breach of the settlement
agreement and found that it complied with the terms of the agreement
when they transferred complainant to the Gilcrease Station.
On April 14, 2000, complainant appealed to the Commission claiming that
the agency was in breach of the February 22, 2000 settlement agreement.
In the instant case, the Commission finds that the record does not
reflect when or if complainant was transferred to a distribution clerk
position, and if the transfer occurred, to which station complainant
was transferred. Consequently, the Commission VACATES the agency's
decision finding no breach and REMANDS the complaint back to the agency
for a supplemental investigation.
ORDER
The agency is ORDERED to take the following actions:
(1) Conduct a supplemental investigation regarding complainant's
claim of breach and supplement the record with evidence documenting
when complainant was transferred to a distribution clerk position.
The agency will also supply evidence identifying to which station,
if any, complainant was transferred.
(2) Issue a new agency decision with appeal rights to complainant
addressing her claim of breach within thirty (30) calendar days of the
date this decision becomes final.
A copy of the supplemental investigation and new agency decision must
be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
February 1, 2001
__________________
Date