01A14885_r
08-13-2002
Lowell E. Darnell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lowell E. Darnell v. United States Postal Service
01A14885
August 13, 2002
.
Lowell E. Darnell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14885
Agency No. 4-H-310-0115-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated July 31, 2001, finding that it did not
breach the terms of the June 11, 1998 settlement agreement into which
the parties entered. The issue on appeal is whether the agency breached
the settlement agreement.
The settlement agreement provided, in pertinent part, that:
(1) Management agrees to discuss route changes with complainant;
(2) Management agrees that complainant will not be singled out for
humiliation or degradation;
(3) Management agrees that from June 11, 1998, management at any level
will not seek to retaliate against complainant or seek any unnecessary
action against complainant;
(4) Management agrees that complainant will not be held any more
accountable than any other employee; and
Management agrees to treat complainant with dignity and respect.By letter
to the agency dated June 19, 2001, complainant claimed that the agency
was in breach of the settlement agreement. Based on the claims made in
the notice of breach and an inquiry made by an EEO Dispute Resolution
Specialist, it appears that complainant claims that the agency breached
provision 4 of the settlement agreement which states, �Management agrees
that complainant will not be held any more accountable than any other
employee.� Specifically, complainant claimed that on April 27, 2001,
he was issued a seven-day suspension for causing minor vehicle damage,
while another letter carrier received only a verbal reprimand or Letter
of Warning for causing major vehicle damage.
In its July 31, 2001 decision, the agency concluded that it did not breach
the settlement agreement. The agency explained that although complainant
and the employee to whom complainant compared himself both damaged
their vehicles, there were different circumstances surrounding their
cases, and therefore, different corrective action was taken. The agency
stated that the letter carrier immediately reported her accident to her
supervisor and was charged with failing to perform in a safe manner ad
was issued a Letter of Warning, whereas complainant did not report the
accident immediately and lied during the investigation; therefore, he was
issued a seven-day suspension. Additionally, complainant and the letter
carrier were under different supervisors at the time of the accidents, and
received their discipline from their respective supervisors. The agency
describes what it deems a more comparable example, the corrective action
issued to an individual who was received a 14-day suspension on May 19,
1999, for unsatisfactory safety performance and lying during an official
investigation.
On appeal, complainant emphasizes that the letter carrier who received a
Letter of Warning was on probation at the time of her accident, and she
did not receive a suspension, whereas complainant received a seven-day
suspension that was later reduced to a Letter of Warning. Complainant
also asserts that the charge that he lied during the investigation
was dropped, and that he was charged with failure to properly inspect
his vehicle. Furthermore, he claims that the damage to his vehicle was
minor, but that the letter carrier incurred major structural damage.
Upon review, the Commission finds that the agency did not breach the
June 11, 1998 settlement agreement. The record shows that pursuant
to a settlement agreement with the agency and complainant's union,
complainant's seven-day suspension was reduced to a Letter of Warning
for Failure to Properly Inspect Vehicle on May 15, 2001. Moreover,
the charge of lying during an investigation was dropped and was not
included in the Letter of Warning that was issued to complainant.
Nevertheless, complainant and the employee to whom complainant refers
are not similarly situated. As advanced by the agency, complainant
and that comparison employee were issued discipline by two different
supervisors. The record consistently shows that complainant delayed
reporting his accident, while the comparison employee reported her
accident immediately. Although in his notice of breach, complainant
suggests that other employees have received a variety of discipline,
he provides no other specific examples of similarly situated employees.
The employee offered by the agency as a viable comparison also did
not have the same supervisor as complainant; however, that employee
was charged with unsatisfactory safety performance and lying during
an official investigation, and was issued a 14-day suspension, a more
severe form of discipline than that initially issued to complainant.
The Commission finds that the agency did not breach provision 4 of the
settlement agreement by holding complainant more accountable than other
employees, and complainant has also failed to provide evidence that
the agency breached any other provision of the June 11, 1998 settlement
agreement.
Therefore, the agency's final decision finding that it did not breach
the settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 13, 2002
__________________
Date