William J. Thomas, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 20, 2009
0120090916 (E.E.O.C. May. 20, 2009)

0120090916

05-20-2009

William J. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


William J. Thomas,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090916

Agency No. 4F956009708

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated December 9, 2008, finding that it

was in compliance with the terms of the September 12, 2008 document that

the agency characterized as a settlement agreement between the parties.

See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �

1614.405. By letter to the agency dated October 19, 2008, complainant

alleged that the agency was in breach of a settlement agreement between

the parties, and requested that the agency specifically implement its

terms. Complainant did not specify the date of the alleged agreement.

In his breach allegation, complainant specifically alleged that the

agreement set his schedule from 6:30 am to 2:30 pm with a half hour

lunch, with Saturday and Sunday off. Complainant alleged that the agency

subsequently changed his schedule so that he now has Fridays off.

In its December 9, 2008 FAD, the agency concluded it had not breached

the agreement, but did not specify how it reached that conclusion.

We note initially that EEOC Regulation 29 C.F.R. � 1614.603 provides

that any settlement reached "shall be in writing and signed by both

parties and shall identify the allegations resolved." Furthermore, 29

C.F.R. � 1614.504(a) provides that any settlement agreement "knowingly and

voluntarily" agreed to by the parties shall be binding on the parties.

In the present case, we find that there is nothing in the record to

suggest that the parties entered into a valid EEO settlement agreement.

Furthermore, we find that the document submitted on appeal is not a

settlement agreement under � 1614.504(a). The document in question

appears to be a memorandum detailing the actions undertaken by an

agency EEO official in an effort to settle the dispute, but it does not

constitute a settlement agreement. The document refers to efforts by the

un-named EEO official to minimize the current and future financial impact

of complainant accepting a job offer in the Clerk craft. The document

contains no language about settlement terms and no language addressing

the rights and obligations of each party under the alleged agreement.

Nor does the document contain a statement of rights informing the

parties of what to do should one of the parties breach the agreement.

In addition, the document does not "identify the allegations resolved"

by the alleged agreement, as required by � 1614.603. Therefore, we

find that the document submitted by the agency did not constitute a

valid settlement agreement, and the final agency decision finding no

settlement breach is vacated. The Commission hereby voids the September

12, 2008 document and remands this case so that the EEO complaint may

be reinstated for further processing in accordance with the Order herein.

ORDER

The agency is ORDERED to resume processing of complainant's complaint from

the point processing ceased within thirty (30) calendar days of the date

this decision becomes final. The agency shall acknowledge to complainant

that it has reinstated and resumed processing of his complaint. A copy

of the agency letter of acknowledgement 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 (R0408)

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 within ninety (90) calendar days from the date

that you receive this decision. 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 (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

May 20, 2009

__________________

Date

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0120090916

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090916