Stephen J. Zarski, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 22, 1999
05970382 (E.E.O.C. Jan. 22, 1999)

05970382

01-22-1999

Stephen J. Zarski, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Stephen J. Zarski v. United States Postal Service

05970382

January 22, 1999

Stephen J. Zarski, )

Appellant, )

)

v. ) Request No. 05970382

) Appeal No. 01963710

William J. Henderson, ) Agency Nos. 1E891100294

Postmaster General, ) 1E891103294

United States Postal Service, ) 1E891100494

Agency. )

___________________________________)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On January 7, 1997, appellant timely initiated a request to the Equal

Employment Opportunity Commission (EEOC) to reconsider the decision

in Stephen J. Zarski v. Marvin T. Runyon, Jr., Postmaster General,

United States Postal Service, EEOC Appeal No. 01963710 (December

17, 1996). EEOC Regulations provide that the Commissioners may,

in their discretion, reconsider any previous Commission decision.

29 C.F.R. �1614.407(a). The party requesting reconsideration must submit

written argument or evidence which tends to establish one or more of

the following three criteria: new and material evidence is available

that was not readily available when the previous decision was issued,

29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous

interpretation of law, regulation or material fact, or misapplication

of established policy, 29 C.F.R. �1614.407(c)(2); and the previous

decision is of such exceptional nature as to have substantial precedential

implications, 29 C.F.R. �1614.407(c)(3). For the reasons stated below,

the Commission grants appellant's request.

ISSUE PRESENTED

Whether the record before us is sufficient to render a decision on

whether the agency complied with the terms of a settlement agreement

that it entered into with appellant on March 23, 1995.

BACKGROUND

On March 23, 1995, appellant and the agency entered into a settlement

agreement under which appellant would withdraw three pending EEO

complaints. Provision (2) of the settlement agreement set forth its

terms, the following of which are relevant:

The Union Steward and the Labor Relations Representative will calculate

the amount of overtime, if any, owed to appellant for the period of

February 1, 1993 through March 23, 1995, using all relevant records.

To resolve future issues regarding daily overtime, appellant will take

his concerns to Supervisor AD for resolution. If a resolution cannot

be reached, the Union Steward will represent appellant in a standard

grievance. Supervisor AD and the Union Steward will keep complete

records of each incident. At the end of the six-month period, the

records will be evaluated by the Union President and the Senior Labor

Specialist to determine if training or any other action is necessary.

If and when a grievance is filed, the Senior Labor Relations Specialist

will be notified. . . . If appellant feels that there is no acceptable

supervisor available, he can withdraw from the trial period.

In February 1996, appellant contacted the Agency's EEO office with

allegations that the agency breached the provisions of the settlement

agreement pertaining to determination of past overtime owed and resolution

of future overtime disputes. The agency thereafter issued a final

decision that it had fully complied with the past and future overtime

provisions of agreement, and the previous decision affirmed.

ANALYSIS AND FINDINGS

We find that the record before us is insufficient to support a finding on

the merits of the breach allegation. Accordingly, we will remand this

case for a supplemental investigation. The deficiencies with respect

to each provision at issue are discussed below.

Past Overtime

In support of its finding that it did not breach the past-overtime

provision of the settlement agreement, the agency presented an affidavit

from the Labor Relations Specialist. This individual stated that she

and the Union Steward discussed the matter of appellant's overtime on

three occasions, and that their final meeting on the matter took place

on January 28, 1996. She also stated that, based on her review of the

relevant overtime-desired lists and records of overtime actually worked

by appellant and the other clerks at the facility, she concluded that

appellant was not entitled to any overtime in addition to the overtime

that he actually worked between February 1, 1993, and March 23, 1995.

She stated that appellant had worked as much, if not more overtime than

anyone else on the overtime desired list, and that the individual who

appellant identified as a comparative employee worked on a different tour,

with different days off, and consequently, was not a comparative employee

for the purposes of determining entitlement to additional overtime.

Finally, the labor relations specialist stated that the Union Steward

did not have time to peruse all of the relevant records, but that he did

not disagree with her conclusions. She also stated that the Steward

indicated that he would get back to her after their final meeting on

January 28, 1996, and that he never did so.

In his request for reconsideration, appellant identifies eight other

employees on his shift who allegedly worked more overtime than he did.

In support of his request, he presented documentation showing that

one of those employees consistently worked more overtime than he worked

between February 1, 1993, and March 23, 1995.

The record on the past overtime issue is insufficient because the

agency failed to present any information as to how the Union Steward

and the Labor Relations Representative made their determination that

appellant was not owed any additional overtime. All we have before

us are a stack of overtime records and an unsupported conclusion from

the Labor Relations Representative. Moreover, it is not even clear

that the Union Steward ever resolved the matter to his satisfaction,

as he provided no corroborating affidavit. We will therefore direct the

agency to conduct a supplemental investigation that will include, at

minimum: a statement from the Labor Relations Representative as to how

she determined that appellant was not entitled to additional overtime,

including her calculations and a list of comparative employees that she

used in making her determination; and a similar statement from the Union

Steward. In addition, the Steward's statement will address whether he

agreed with the Labor Relations Representative's assessment that appellant

was not entitled to any additional overtime between February 1, 1993,

and March 23, 1995, and if not, then why not.

Resolution of Future Overtime Disputes

In its no-breach determination letter, the agency stated that neither

appellant nor the Union Steward approached Supervisor AD about overtime

problems or filed a grievance concerning overtime during the six-month

trial period referenced in the settlement agreement. Consequently,

the agency determined that there were no records requiring a review

and evaluation by the Senior Labor Relations Specialist and the Union

President. In its response to appellant's appeal, the agency further

indicated that it located three grievances relative to overtime that

occurred within the six-month trial period in question, but that none of

those grievances had been addressed to Supervisor AD. In his request for

reconsideration, appellant responds that Supervisor AD was on extended

vacation in Germany during the trial period, and was consequently

unavailable for him to contact.

The record on the future overtime issue is also deficient. Neither party

submitted any evidence about the three grievances referred to in the

agency's June 1996 response to appellant's appeal. Consequently, we

do not know to whom those grievances were taken for resolution or what

the outcomes of those grievances were. It is likewise unclear whether

appellant took these grievances to a supervisor other than Supervisor AD,

as the settlement agreement permitted him to do. In addition, no document

submitted by the agency identifies precisely when the six-month trial

period referenced in the settlement agreement actually began and ended.

Finally, it is unclear whether and to what extent the agency kept records

of the three grievances, as it may have been required to do under the

terms of the settlement agreement. In light of these evidentiary

deficiencies, we will direct the agency to conduct a supplemental

investigation on this issue as well.

CONCLUSION

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant's

request meets the criteria of 29 C.F.R. �1614.407(c), and it is the

decision of the Commission to grant appellant's request. The decision of

the Commission in Appeal No. 01963710 affirming the agency's finding that

it did not breach the settlement agreement entered into on March 23, 1995

is vacated. The agency's final decision that it did not breach the March

1995 settlement agreement is likewise vacated, and the matter is hereby

remanded to the agency for a supplemental investigation in accordance

with our order below. There is no further right of administrative appeal

from a decision of the Commission on request for reconsideration.

ORDER (B1092)

The agency shall conduct a supplemental investigation, which shall

include the following:

The agency shall investigate whether and to what extent the Union Steward

and the Labor Relations Specialist identified in the March 23, 1995

settlement agreement actually determined that appellant was not entitled

to additional overtime compensation between February 1, 1993 and March

23, 1995. The investigation shall include: a statement from appellant

as to why he believes that the overtime calculations made by the Union

Steward and the Labor Relations Specialist are in error; statements from

the Labor Relations Specialist and the Union Steward covering: the methods

used to determine that appellant was not entitled to additional overtime;

the employees to whom appellant was compared by the Union Steward and the

Labor Relations Specialist, the notes and calculations made by the Union

Steward and the Labor Relations Specialist, a statement of reasons from

the Union Steward as to why he did not follow up on the matter after

January 28, 1996, as well as any other pertinent information.

The agency shall likewise investigate the agency's attempts to

resolve overtime issues raised by appellant after March 23, 1995.

The investigation shall include statements from all supervisors, managers

and union officials who were tasked with setting up the procedure

for resolving overtime-related grievances after the execution of the

settlement agreement. The agency shall ascertain the exact dates covered

by the six-month trial period referenced in the settlement agreement.

The agency shall also obtain all documentation relevant to the three

grievances identified in its June 18, 1996 response to appellant's appeal.

In addition, the agency shall obtain a detailed affidavit from appellant

concerning his efforts to contact a supervisor other than Supervisor AD

in connection with overtime grievances that arose after March 23, 1995,

as well as any relevant documentation.

Thereafter, the agency shall issue a final decision on the issue

of whether it fully complied with the settlement agreement, in

accordance with 29 C.F.R. �� 1614.110 and 1614.504(b). The supplemental

investigation and issuance of the final decision must be completed within

90 calendar days of the date this decision becomes final. A copy of the

final decision must be submitted to the Compliance Officer, as referenced

below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

JAN 22, 1999

_______________ ______________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat