Ronald Miller, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 1, 2009
0120092711 (E.E.O.C. Dec. 1, 2009)

0120092711

12-01-2009

Ronald Miller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Ronald Miller,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120092711

Agency No. 4F-926-0041-09

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision dated May 4, 2009, dismissing his complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

On December 5, 2008, complainant initiated EEO contact alleging that the

agency retaliated against him for prior protected EEO activity when,

on December 2, 2008, a Human Resources representative (HR1) failed

to respond to his inquiry about adjustments to his retirement account

and alleged debt to the agency, as was required by a prior settlement

agreement. He stated that later, during a telephone conversation, HR1

was unable to provide justification for the agency's failure to make

proper adjustments.

In its May 4 final decision, the agency dismissed complainant's

complaint pursuant to 29 C.F.R. � 1614.107(a), for untimely EEO contact

and failure to state a claim. The agency stated that it reinstated

complainant in August 2003 and that complainant acknowledged that his

earnings statements did not reflect prior retirement contributions, so

it was at that time the statutory time-frame was triggered. Further,

the agency stated that complainant received a letter of demand for

debt approximately a year before his initial EEO contact. The agency

also stated that complainant's retirement contributions issue "lodge[s]

a collateral attack on another forum's proceeding."

Here, the record reflects that complainant claimed that the agency

retaliated against him when it failed to comply with the terms of an

August 2003 settlement agreement into which the two entered. Accordingly,

we find that complainant's December 2008 contact is more appropriately

viewed as an allegation of settlement breach, rather than as a separate

complaint. Breach of settlement is addressed in EEOC Regulation 29

C.F.R. � 1614.504. However, there is insufficient information in

the record to determine whether the agency failed to comply with the

2003 agreement with complainant. Accordingly, we VACATE the agency's

procedural dismissal and REMAND the matter to the agency for supplemental

investigation pursuant to 29 C.F.R. � 1614.504(c) and consistent with

this decision and the Order below.

ORDER

The agency is ordered to investigate the issue of whether it failed to

comply with a settlement agreement with complainant (presumably from

about August 2003) when it failed to make appropriate adjustments to

complainant's retirement account and alleged indebtedness balance. In

the supplemental investigation, the agency shall include the pertinent

settlement agreement and documentation evidencing actions taken to

comply with said agreement. The agency must also provide complainant

an opportunity to place into the record any evidence supporting his

claim on non-compliance. Within sixty (60) calendar days from the

date this decision becomes final, the agency shall issue a decision

as to whether it complied with the pertinent settlement agreement.

The agency's decision shall provide appeal rights to this Commission.

Documentation evidencing the agency's supplemental investigation and its

subsequent decision must be sent to the Compliance Officer as referenced

below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 77960, Washington,

DC 20013. 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 (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

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 (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

December 1, 2009

__________________

Date

2

0120092711

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092711