0120100561
03-31-2011
Wanda L. Jackson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Wanda L. Jackson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120100561
Agency No. 1G-000-1002-91
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated October 8, 2009, finding that Complainant's claim of breach of the terms of a March 5, 1991 settlement agreement was untimely raised. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
Complainant in a PS-Form 2564-A dated August 18, 2009, and in letters dated September 15, 2009, and September 30, 2009, alleged a breach of a March 5, 1991 settlement agreement (SA) which was in resolution of Agency EEO Complaint No. 1G-000-1002-91, and requested that the Agency specifically implement the terms of the SA.1
Complainant, claiming that her copy of the SA been destroyed in a house fire, stated that the SA stipulated that when she returned to the Agency for employment, she would be required to retake a urine test and be subject to a probationary period. Complainant stated that when she returned for work, she was informed that the Agency was not hiring.
In its October 8, 2009 final decision, the Agency determined that Complainant's breach claim was not timely raised. The Agency stated that the underlying EEO complaint that was resolved by the SA had been filed in 1991, and no copy of the settlement agreement existed any longer because the record had been purged during the intervening years pursuant to the Agency's file retention procedures. The Agency stated that Complainant did not attempt to return to her position for more than eighteen years and the time period for retaining the EEO file for her case had long expired.
ANALYSIS AND FINDINGS
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, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996).
If the Complainant believes that the Agency has failed to comply with the terms of the SA, the complainant shall notify the EEO Director, in writing of the alleged noncompliance within 30 days of the date when complainant knew or should have known of the alleged non compliance. Complainant may request the terms of the SA be specifically implemented, or alternatively, that the complaint be reinstated for further processing from the point processing ceased.
In the instant case, we find that Complainant's allegation of breach is clearly untimely raised. The Commission has held that individuals using the EEO process must act with due diligence in the pursuit of their claims or the doctrine of laches may be applied. See Odel v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). Here Complainant waited more than eighteen years to challenge the settlement agreement. We therefore, determine that complainant failed to diligently pursue her breach claims and they are untimely raised.
For the reasons stated above, the Agency's final decision finding that Complainant's breach claim was not timely raised is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 31, 2011
__________________
Date
1 The record does not contain a copy of the settlement agreement. On appeal, the Agency noted that Complainant did not provide a copy of the 1991 agreement, and that the Agency's "file retention for this case has long passed."
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0120100561
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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