01a31912
12-30-2003
Sharon Forde, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon Forde v. United States Postal Service
01A31912
December 30, 2003
.
Sharon Forde,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31912
Agency Nos. 4-E-800-0106-97
1-E-801-0020-98
1-E-801-0013-98
DECISION
Complainant filed an appeal with this Commission concerning the agency's
compliance with an April 1, 2002 settlement agreement. The Commission
accepts the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
Review of the record reflects that by letter dated October 3, 2002,
complainant attempted to file her breach claim with the EEOC's Denver
District Office. Upon receipt, the Denver District Office transferred
complainant's correspondence to the agency for processing. However,
we find that the record is devoid of any indication that the agency
responded to complainant's breach claim. We further note that it does
not appear that the agency issued a final decision or submitted a response
to this appeal.
Notwithstanding the absence of a final decision or a response on appeal,
the Commission determines that the matters raised in complainant's
claim do not fall within the purview of the operative terms of the
settlement agreement. Specifically , complainant acknowledges that her
claim does not relate to the agency's compliance with the settlement
agreement's operative terms, which include but are not limited to an
award of back pay, restoration of leave, a lump sum payment, provision
of a work reference, review /expungement of personnel and medical files,
and assistance with filing medical documentation with the Office of
Workers' Compensation Programs.
Instead, complainant here contends that the agency violated the
anti-reprisal provisions included in the settlement agreement.
In particular, complainant asserts that the agency has engaged in
on-going retaliatory harassment against her, setting forth a chronology
of incidents, dating from May 2002 to September 2002. These incidents
concern disputes about the reinstatement of her health benefits and
restoration of her retirement date, and her supervisor's refusal to
become involved in these disputes. Complainant also claims that the
agency engaged in retaliatory harassment concerning the processing
of a new on-the-job injury claim (June 15, 2002), to include allowing
co-workers to unfairly benefit in terms of training and experience due to
her injury related absences, as well as a variety of problems with leave
requests associated with her work-related injury. Complainant further
identifies a disciplinary �interview� which took place on July 10, 2002,
again claiming that it was motivated by retaliatory harassment.
Complainant requests that her underlying complaints be reinstated, and
advises the Commission that she is �in the process� of filing a separate
complaint on the matters raised in her breach claim.
The Commission has held that a claim of reprisal in violation of a
settlement agreement's anti-retaliation clause is to be processed as a
separate complaint rather than as a breach of the settlement agreement.
See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990). Additionally, 29 C.F.R. � 1614.504(c) provides
that claims that subsequent acts of discrimination violate a settlement
agreement shall be processed as separate complaints.Based on complainant's
statements, and the operative provisions of the settlement agreement at
issue, we find that the claims raised by complainant in her �breach claim�
must be construed as a separate complaint of retaliatory harassment.
Therefore, if she has not already done so, we advise complainant to
contact an EEO Counselor regarding these claims if she wishes to further
pursue them.
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 (S0900)
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. If you file a request to reconsider
and also file a civil action, 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
December 30, 2003
__________________
Date