05980091
01-10-2000
Robert J. Maietta, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Area), Agency.
Robert J. Maietta v. United States Postal Service
05980091
January 10, 2000
Robert J. Maietta, )
Complainant, )
) Request Nos. 05980091; 05980666
v. ) Appeal Nos. 01971273; 01973740
) Agency Nos. 1-2-0310-1, et al.<1>;
) 1A-106-1017-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Area), )
Agency. )
____________________________________)
DENIAL OF REQUESTS FOR RECONSIDERATION
On November 3, 1997, Robert J. Maietta (complainant) initiated a request
to the Equal Employment Opportunity Commission (EEOC) to reconsider
the decision in Robert J. Maietta v. United States Postal Service,
EEOC Appeal No. 01971273 (October 24, 1997). On February 13, 1998,
complainant initiated a request to the EEOC to reconsider the decision
in Robert J. Maietta v. United States Postal Service, EEOC Appeal
No. 01973740 (January 15, 1998).<2> EEOC Regulations provide that
the Commissioners may, in their discretion, 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 64 Fed. Reg. 37,644, 37,654 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. �1614.405(b)). For the reasons
set forth herein, both of complainant's requests are denied.
The issues presented are whether the prior decisions properly affirmed
the final agency decisions (FADs) dated January 17, 1997<3> and March 13,
1997, respectively. In the FAD at issue in EEOC Appeal No. 01971273, the
agency found that it had not violated the non-reprisal clauses contained
in three prior settlement agreements entered into by complainant and
the agency.<4> The prior decision in EEOC Appeal No. 01971273 affirmed
the FAD, finding that complainant had not alleged non-compliance with
the settlement agreements but rather had raised subsequent incidents
of alleged retaliation, which therefore had to be processed through the
EEO complaint process rather than as alleged settlement breaches.
In the FAD at issue in EEOC Appeal No. 01973740, the agency denied
complainant's request to add a settlement breach claim to his underlying
complaint, where the settlement breach claim was based on the same
factual incidents which had been accepted for investigation.<5> The
FAD stated that while these factual incidents had been accepted for
processing as alleged violations of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq., this did not include
consideration of whether these incidents also constituted breaches of
complainant's prior settlement agreements. The prior decision in EEOC
Appeal No. 01973740 affirmed the FAD.
In his requests for reconsideration, complainant contends that he
should be permitted to challenge the incidents at issue not merely as
new acts of retaliation or discrimination, but also as breaches of his
prior settlement agreements. He argues that to hold otherwise would
mean that a complainant would effectively be denied the ability ever to
raise alleged breach of a settlement agreement non-retaliation clause,
since any act or incident occurring after execution of a settlement
agreement could constitute a new incident for which the EEO complaint
process must be utilized.
The prior decision in EEOC Appeal No. 01973740 properly found that
complainant could not add settlement breach contentions to the underlying
EEO complaint. Alleged breaches of settlement agreements must be
raised pursuant to the procedures set forth in 64 Fed. Reg. 37,660
(1999) (to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. � 1614.504). However, not all claims are subject to review as
breaches of a settlement agreement, and the prior decision in EEOC Appeal
No. 01971273 properly found that complainant could not raise settlement
breach contentions based on alleged new incidents of retaliation or
discrimination.
The Commission has repeatedly held that a complainant is not entitled
to reinstate a prior complaint by relying solely on an agency's alleged
breach of a "no reprisal" clause in a settlement agreement. In Bindal
v. Department of Veterans Affairs, EEOC Request No. 05900225 (August 9,
1990), we explained:
the language of such provisions is so broad that it would, in essence,
permit an appellant to reopen his complaint endlessly. Thus, if a party
to a settlement agreement is not required to file a new complaint with
respect to reprisal allegations, a "no reprisal" clause would destroy
the finality of all settlement agreements even though the agency had,
in fact, complied with all substantive provisions of the settlement
agreement. Alternatively, a contrary construction of a "no reprisal"
clause would permit new allegations to be raised without regard to
counseling requirements or time limitations, a result neither expressly
nor impliedly sanctioned by EEO Regulations.
Not only has the Commission repeatedly announced the foregoing rule, but
it has also previously applied the rule in complainant's own cases. See,
e.g., Maietta v. United States Postal Service, EEOC Appeal No. 01921198
(April 9, 1992).
The proper procedure for challenging new incidents of alleged retaliation
or discrimination is through the EEO counseling and complaint process, and
complainant in fact filed complaints raising many of the claims here at
issue. To the extent some of those claims have not been deemed cognizable
or meritorious does not present grounds to reconsider the prior decisions
here at issue. Accordingly, after a review of complainant's requests
for reconsideration, the previous decision, and the entire record, the
Commission finds complainant's requests do not meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
complainant's requests. The decisions of the Commission in EEOC Appeal
Nos. 01971273 and 01973740 remain the Commission's final decisions.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
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 (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:
January 10, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
1The agency case numbers include 1-2-0310-1, 1-2-668-1, 1-2-0542-1,
1-2-05-66-3, 1-2-09-43-3, 1-2-03-10-1, 1-2-06-42-1, 1-2-570-5, and
1-2-096-5.
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
3The FAD dated January 17, 1997 was a memorandum submitted by the agency
to this Commission in response to claims of settlement breach which
complainant had raised directly with this Commission by letter dated
November 12, 1996.
4Complainant contended that these non-reprisal clauses were violated
when the agency engaged in the following alleged acts of subsequent
retaliation: (1) the Human Resources Manager wrote a derogatory
letter about complainant dated August 14, 1996; (2) on January 30,
1996, complainant became aware that a letter dated August 19, 1992, was
improperly placed in his medical unit file; (3) on September 4, 1996, an
agency employee responded to complainant in a provocative manner during a
grievance meeting; (4) on August 15, 1996, the agency attempted to settle
his complaint by showing him a file and erroneously claiming that it was
the file he had requested to review; (5) an EEOC Administrative Judge
issued an erroneous decision on his complaint and conducted a partisan
hearing by denying him the opportunity to present his case in a proper
manner during the hearing and in pre-hearing discovery.
5In the underlying complaint, filed April 5, 1996, complainant
claimed he was subjected to retaliation based on prior EEO activity
and discrimination based on race (White) when, on January 30, 1996,
he became aware that a letter dated August 19, 1992, was contained in
his medical unit file. The letter at issue referred to complainant's
prior thirteen-month suspension, imposed on him due to a criminal charge
of which he was subsequently acquitted. The letter also described his
past EEO and grievance activity. The agency originally dismissed the
complaint for failure to state a claim, but that decision was vacated
and the claim was remanded for processing. See Maietta v. United States
Postal Service, EEOC Appeal No. 01964382 (January 15, 1997).