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