01993328
08-11-2000
Bruce A. Miller, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Bruce A. Miller v. United States Postal Service
01993328
August 11, 2000
.
Bruce A. Miller,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993328
Agency No. 4-G-780-1202-96
DECISION
Complainant filed a timely appeal with this Commission from a February
17, 1999 final agency decision, finding that it was in compliance with
the terms of the December 4, 1996 settlement agreement into which the
parties entered.<1> The Commission accepts the appeal for review.
See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and
hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.402);
29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be
codified at 29 C.F.R. � 1614.405).
The December 4, 1996 settlement agreement provided as follows:
[The complainant] will be made whole for the incident of 3/30/96 in that
the AWOL will be changed to sick leave as he requested. The total hours
are 7.93 hours. [The complainant] is assured no harassment in any form
is condoned or will be tolerated. [The complainant] will be treated with
dignity and respect the same as all other employees in his unit and no
reprisal action will be taken against him for filing this EEO complaint.
In a notice of breach to the agency, the complainant alleged that the
agency breached the settlement agreement because it retaliated against
him in violation of the �no reprisal� clause of the agreement and failed
to treat him with dignity and respect. Specifically, the complainant
alleged that on December 7, 1998, he was harassed on the telephone by
Supervisor A when he requested more time to complete his mail route
and on October 27, 1998, Supervisor B told him that he was required to
provide medical documentation for a one-day sick leave request.
In its February 17, 1999 final decision, the agency concluded that the
settlement agreement was not breached. It noted that the complainant was
not harassed and that a discussion was held with all employees regarding
attendance. On appeal, the complainant re-argues the issues raised in
his notice of breach and also adds that medical documentation was only
required for sick leave in excess of three days. He also contends that
the agency failed to respond to his notice of breach within 35 days.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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.
EEOC Regulation 29 C.F.R. � 1614.504(c) provides that allegations that
subsequent acts of discrimination violate a settlement agreement shall be
processed as separate complaints, rather than as allegations of breach of
settlement. The Commission finds that the complainant's allegations that
the agency breached the settlement agreement by acts of harassment and
reprisal are allegations that subsequent acts of discrimination violated
the settlement agreement. Such allegations should be processed as a
separate complaint under � 1614.106, rather than as breach allegations.
See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990) (a complaint which alleges reprisal in violation of
a settlement agreement's "no reprisal" clause is to be processed as a
separate complaint and not as a breach of settlement). Consequently,
the complainant may, if he so wishes, contact an EEO Counselor pursuant
to 29 C.F.R. � 1614.105 to pursue such allegations as separate non-breach
allegations of discrimination.
Regarding the agency's alleged failure to treat him with dignity and
respect, the Commission finds that provision too vague to allow a
determination as to whether the agency complied with such a provision.
See Bruns v. United States Postal Service, EEOC Appeal No. 01965395
(June 24, 1997) (provision in settlement agreement that complainant was
to be treated fairly and with dignity and respect was too vague to allow
a determination of whether the agency had complied with the provision);
Dove v. United States Postal Service, EEOC Appeal No. 01963814 (January
3, 1997) (provision in settlement agreement requiring management to act
professionally toward complainant was too vague to be enforceable);
Lesnick v. United States Postal Service, EEOC Appeal No. 01951082
(February 23, 1996) (provision in settlement agreement that complainant
was to be treated with same respect as that accorded any human too
vague to determine compliance). Any allegation of a breach of such
provisions is analogous to �no reprisal clauses,� and should be raised
as a new allegation. See Rowe v. United States Postal Service, EEOC
Appeal No. 01963176 (October 21, 1998). Accordingly, the complainant
may contact an EEO Counselor to pursue his allegations.
Finally, regarding the complainant's assertion that the agency failed
to respond to his notice of appeal within 35 days, the Commission notes
that 29 C.F.R. � 1614.504(a) does not require that the agency respond to
a notice of breach within 35 days. It is the complainant who may file
an appeal to the Commission 35 days after the complainant has provided
the agency with notice of a breach.
Consistent with the foregoing, the agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 11, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.