0120072919
03-04-2009
Thomas B. King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Thomas B. King,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120072919
Agency Nos. 1C-443-0037-04, 1C-443-0029-03, and 1C-443-0049-03
DECISION
Complainant prematurely filed an appeal to the Commission after he
requested that his underlying EEO complaint be reinstated in a letter
to the agency dated May 21, 2007. Nonetheless, after appealing to
the Commission on May 21, 2007, the agency issued a final decision
denying complainant's request to reinstate his underlying EEO complaint
and finding that the agency had complied with the terms of the April
18, 2005 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.
Therefore, in the interest of judicial economy, we determine that
the matters raised by complainant can be adequately addressed by the
Commission at this juncture and exercise our discretion to do so.
The record reveals that the April 18, 2005 settlement agreement provided,
in pertinent part, that:
(1) The Postal Service will not issue a Letter of Decision/Notice
of Removal to [complainant] until after OPM has issued a determination
on his application for disability retirement benefits; it is understood
that such Letter of Decision/Notice of Removal will be issued only if
OPM denies King's application for disability retirement benefits.
(2) If OPM denies [complainant's] application for disability
retirement benefits, resulting in the Postal Service issuance of the
Letter of Decision/Notice of Removal, the effective date of such removal
will be retroactive, and the effective date of the action will be April
30, 2005.
(3) [Complainant] and his representatives, including [complainant's
attorney] and the [National Postal Mail Handler Union], agree to waive
the right to challenge the timeliness of the aforementioned Letter of
Decision/Notice of Removal and/or to challenge the evidence used to
support the Removal as "stale" or otherwise improper due to the passage
of time.
(4) The parties to the aforementioned EEOC claims agree that
Complainant will move for dismissal of such claims without prejudice
pending OPM's consideration and determination of King's application for
disability retirement benefits.
In a letter to the agency dated May 21, 2007, complainant requested that
the settlement agreement be voided because his attorney entered into the
agreement without his consent and authorization. In its final decision,
the agency found that it had complied with the terms of the agreement.
Further, the agency denied complainant's request to void the agreement
because it determined that complainant designated his attorney as his
official representative, and as such, his attorney had the authority to
negotiate the agreement on complainant's behalf.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached
at any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a contract
between the employee and the agency. See Herrington v. Department of
Defense, EEOC Request No. 05960032 (December 9, 1996).
In the instant case, complainant argues that the agreement should
be voided because his former attorney signed the agreement without
complainant's authorization. We note that in an appellate declaration,
complainant asserts that he received a copy of the agreement on April 18,
2005, but "did not understand the import of the Agreement and still do[es]
not understand that this Agreement was intended to dismiss, if it was,
all of my pending EEOC claims." However, we observe that the agreement
expressly states that "the parties to the aforementioned EEOC claims
agree that complainant will move for dismissal of such claims...pending
OPM's consideration and determination of [complainant's] application
for disability retirement benefits." Moreover, complainant did not
request that the settlement agreement be voided until May 2007, more
than two years after he received a copy of the agreement. We note that
the Commission has consistently held that a complainant must act with due
diligence in the pursuit of his claim or the doctrine of laches may apply.
See Lewis v. Department of Homeland Security, EEOC Appeal No. Appeal
No. 0120071468 (August 8, 2008) (finding that complainant's claim that
a settlement agreement should be voided is precluded by the doctrine of
laches where complainant waited nearly two years to raise his claim).
We determine that complainant has not offered adequate justification
for waiting over two years to raise his claim that the agreement should
be voided. Accordingly, the Commission AFFIRMS the final agency decision
for the reasons set forth in this decision.
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
_March 4, 2009_________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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