01983078
05-28-1999
Juan C. Sosa v. United States Postal Service
01983078
May 28, 1999
Juan C. Sosa, )
Appellant, )
)
v. ) Appeal No. 01983078
) Agency No. 3-S-1544-92
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated February 23, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.504(b). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The parties entered into a settlement agreement, dated February 25, 1997,
wherein the appellant agreed to withdraw all outstanding EEO complaints
in exchange for the following agency promises:
a. Complainant may use his Sick Leave in place of prior Leave Without
Pay for up to an amount of approximately 3,000 dollars (181 hours).
Effectively, he will be permitted to "cash in" 181 hours of previously
accrued Sick Leave.
b. He will receive $7000.00 minus the appropriate standard deductions
pursuant to Postal Service Regulations and I.R.S. Regulations.
On June 2, 1997, the appellant requested that the agency reinstate his
EEO complaints because the agency had not paid his sick leave settlement
in full and numerous deductions had been made. He also indicated that he
was not accepting the sum the agency wanted to pay him after deductions
from the $7000. The appellant indicated that he would return the monies
received to date.
The agency issued the final agency decision finding that it had complied
with the terms of the agreement in that the agreement specifically
provided that appropriate deductions would be made.
On appeal, the appellant contends that deductions were never mentioned
in the negotiations. The appellant represents that he received a check
for about $1700 after deductions from his sick leave reimbursement.
He also represents that he never received a check for the $7000.
After a review of the record, the Commission finds that the agreement
signed by the appellant specifically provided that he would receive
$7000 minus the standard deductions required by regulation. Accordingly,
the Commission finds that the agency did not breach paragraph 6b of the
agreement when it deducted a total of $2,495.50 for social security,
medicare, and federal tax withholding.
The Commission also finds that the agency did not breach paragraph 6a
of the agreement to the extent that it made similar deductions for the
appellant's sick leave reimbursement. If the appellant initially had
used 181 hours of sick leave instead of 181 hours of leave without pay,
the agency would have made such deductions.
However, the record does not clearly demonstrate that the appropriate
amount of deductions were made from the $3000 in sick leave used.
In addition, the Commission is unable to determine whether the agency
has fully complied with the terms of the agreement in that there is
insufficient evidence in the record that the appellant received the two
checks which were due him.
Accordingly, the Commission affirms the final agency decision in part
and vacates and remands the decision in part for supplementation of the
record.
ORDER
The agency is ORDERED to supplement the record with an affidavit from an
agency official explaining the deductions the agency made from the 181
hours of sick leave used by the appellant pursuant to the February 25,
1997 settlement agreement.
The agency is also ORDERED to supplement the record with proof that the
appellant received the two checks which the agency purportedly issued
pursuant to paragraphs 6a and 6b of the agreement.
The agency shall then meet with the appellant to explain how it calculated
the deductions.
The agency shall issue a new final decision on the appellant's
noncompliance allegations and send a copy of the decision to the
Compliance Officer referenced below.
The agency shall complete the actions described above within sixty (60)
days of the date this decision becomes final.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
May 28, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations