0120093266
12-04-2009
Teodor Cristescu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Teodor Cristescu,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120093266
Agency No. 1B061006001
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 29, 2009, finding that it was in
compliance with the terms of the October 17, 2002 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The agency agreed in the settlement agreement to permit complainant to
begin his tour of duty at 7:00 AM. He works in a modified assignment,
four hours a day. In January 2005, the agency, writing complainant had
reached maximum medical improvement, offered him the rehabilitation job
of modified PTR mail handler, with the hours of 7:30 AM to 11:30 AM.
He continued to work those hours until April 2009.
On April 16, 2009, the agency offered complainant the position of modified
mail handler with the hours of 12:00 noon to 4:00 PM. An agency manager
explained that there was a consolidation of all tour 2 mail handler
positions in the facility, and the primary reason for the change in
complainant's work hours was there was no longer work available for him
to perform from 7:30 AM to 11:30 AM.
On May 1, 2009, complainant contacted an EEO counselor. He was provided
an intake form entitled "Information for Pre-Complaint Counseling."
Therein, he alleged that the agency breached the settlement agreement
when it informed him on April 15, 2009, that his hours were being changed
to 12:00 noon to 4:00 PM.
The FAD found no breach. It reasoned that after the settlement agreement
complainant accepted a modified assignment within his medical restrictions
changing his start time to 7:30 AM, and hence there was no breach.
The FAD also found that complainant failed to timely raise his allegation
of breach. Tracking the language in 29 C.F.R. � 1614.504(a), the
settlement agreement provides that if complainant believes the agency
has failed to comply with the terms of the settlement agreement, he
shall notify in writing the EEO Compliance and Appeals Coordinator in
his area of the alleged noncompliance within 30 days. In dismissing the
allegation of breach, the FAD reasoned that complainant accepted a new
position with new hours in 2004 [2005], but waited until May 1, 2009,
to allege breach, beyond the 30 day deadline.
On appeal, complainant's writings suggest that he did not view the 7:30
AM start time to be a breach, but he views the 12:00 noon start time to
be one.
The Commission has held that a settlement agreement that places a
complainant into a specific position, without defining the length of
service or other elements of the employment relationship, will not
be interpreted to require the agency to employ the complainant in the
identical job specified forever. Papac v. Department of Veterans Affairs,
EEOC Request No. 05910808 (December 12, 1991) and Elliott v. United
States Postal Service, EEOC Appeal No. 01970474 (August 27, 1997).
In the absence of a specific time frame in a settlement agreement, it is
interpreted to be for a reasonable amount of time. Parker v. Department
of Defense (Defense Logistics Agency), EEOC Request No. 05910576 (August
29, 1991) (agreement that did not specify length of service for position
to which complainant was promoted was not breached by the temporary detail
of complainant two years after the execution of the settlement agreement).
These principles also apply to the agreed start time.
Complainant does not contend that his new start time of 7:30 AM in 2005
was a breach. Whether or not his acceptance in 2005 of a new start time
of 7:30 AM has legal significance, applying the above legal principles,
we find that the settlement agreement does not cover the start time
upon which complainant alleges breach, i.e., 12:00 noon in April 2009.
Accordingly, we need not determine whether complainant timely notified
the agency of his breach claim.
Nevertheless, complainant contacted an EEO counselor on May 1, 2009,
and then filed an EEO intake form about the April 2009 schedule change.
His allegation that this subsequent act violated a settlement agreement
should be handled as a request for counseling on a discrimination claim.
Cf. 29 C.F.R. � 1614.504(c). On remand, the agency shall treat the May 1,
2009, EEO contact and subsequent filing of the intake form as a request
for EEO counseling, and counsel complainant and process the matter in
accordance with 29 C.F.R. � 1614.105(b)(1) et seq.
ORDER
The agency shall treat the May 1, 2009, EEO contact and subsequent filing
of the intake form as a request for EEO counseling and counsel complainant
and process the matter in accordance with 29 C.F.R. � 1614.105(b)(1)
et seq. The contact date for timeliness purposes shall be deemed May
1, 2009. The agency shall acknowledge to the complainant that it has
received his request for counseling within thirty (30) calendar days of
the date this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant 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 (S0408)
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 (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 4, 2009
__________________
Date
2
0120093266
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093266