01a15345_r
03-01-2002
Robert L. Mendiola, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert L. Mendiola v. United States Postal Service
01A15345
March 1, 2002
.
Robert L. Mendiola,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A15345
Agency No. 1G-784-0034-01
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's claims of unlawful employment discrimination
that the parties had settled is improper. See 29 C.F.R. � 1614.504. The
record indicates that on or around April 13, 2001, complainant requested
EEO counseling alleging discrimination based on race/age (unspecified)
when on March 23 and 27, 2001, his coworker was allowed to leave early,
was given more clothing allowance, and was given extra breaks. In order
to resolve the matter, the parties entered into a settlement agreement
on May 25, 2001, which provided, in pertinent part, that:
[Complainant's supervisor] will immediately investigate threats against
[complainant]. Rules about early off list and smoke breaks will be
more strictly followed. Pallet jacks will not be stored in the battery
room. [The supervisor] will check on clothing allowance. [Complainant's]
hours will not change as result of this case.
On June 20, 2001, complainant alleged that the agency breached the
settlement agreement because: his coworker who made threats against
him was not sent home or removed from the work place; his group leaders
was still taking numerous smoke breaks while all others were working;
the supervisor had not taken any action on reducing the amount of
clothing allowance that the coworker was receiving or increasing the
amount of clothing allowance that complainant was receiving; and after
the settlement agreement, complainant was not called at home to come in
for overtime, but the coworker was called and came in for overtime.
On July 3, 2001, the agency stated that it did not breach the settlement
agreement. Specifically, the agency indicated that on June 21, 2001,
complainant's supervisor informed complainant of findings on the threats
made by the coworker; on May 25, 2001, the group leader was advised in
regards to the smoke breaks; the supervisor checked into the clothing
allowance and it was found to be correct; the coworker's job description
qualified him for the contract clothing allowance; complainant's job
description qualified him for the work program clothing allowance;
and complainant and others who were on their day off on May 26, 2001,
were called for overtime but they were not available.
On appeal, complainant, reiterating his prior arguments, contends that
he was still not treated fairly and that his coworker was still treated
more favorably concerning leave, breaks, work assignments, and working
conditions.
The Commission notes that the Older Workers' Benefit Protection Act
(OWBPA) amended the Age Discrimination in Employment Act (ADEA), effective
October 16, 1990, and provides the minimum requirements for waiver of ADEA
claims. To meet the standards of the OWBPA, a waiver is not considered
knowing and voluntary unless, at a minimum: it is clearly written from
the viewpoint of complainant; it specifically refers to rights or claims
under the ADEA; the consideration is given in exchange for the waiver;
complainant is advised, in writing, to consult with an attorney prior to
executing the agreement; and complainant is given a �reasonable� period
of time in which to consider the agreement. See Juhola v. Department
of the Army, EEOC Appeal No. 01934032 (June 30, 1994).
In the instant case, complainant clearly raised a claim of age
discrimination which was resolved through the settlement agreement at
issue. However, the settlement agreement at issue does not specifically
state that complainant is waiving his rights or claims under the ADEA.
Moreover the agency did not advise complainant in writing to consult with
an attorney prior to executing the settlement agreement. Additionally,
the record does not support a finding that complainant had been given a
reasonable period of time in which to consider the settlement agreement.
Therefore, the Commission finds that complainant's decision to enter the
settlement agreement was neither knowing nor voluntary under the OWBPA.
Accordingly, the agency's decision is REVERSED and the matter is REMANDED
to the agency so that the agency may reinstate the settled matter for
further processing in accordance with the Order herein.
ORDER
The agency, within 30 calendar days of the date this decision becomes
final, shall resume processing the settled matter from the point
processing ceased pursuant to 29 C.F.R. Part 1614. The agency, within
30 calendar days of the date this decision becomes final, shall send
a letter to complainant, and the Compliance Officer referenced herein,
stating that the agency is resuming processing the settled matter.
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
March 1, 2002
__________________
Date