01996692_r
11-02-2001
Paulette Jacks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paulette Jacks v. United States Postal Service
01996692
November 2, 2001
.
Paulette Jacks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996692
Agency No. 4C-175-0045-98
DECISION
Complainant filed an appeal with this Commission on August 25, 1999,
after 35 days had elapsed since complainant served the agency with her
July 12, 1999 notice of breach of the parties' May 6, 1999 settlement
agreement. The issue on appeal is whether the agency breached the
settlement agreement.
The settlement agreement provided, in pertinent part, that:
Postal management will adhere to complainant's medically defined work
limitations/restrictions as defined by her treating physician, and will
comply with such restrictions in assigning light or limited duty work.
If there are any questions concerning a change in limitation and/or
scope of duties that complainant can perform, postal management agrees
to adhere to the existing limitations/restrictions pending clarification
from complainant's treating physician and such clarification will be
made as soon as practicable after the conflict arises.
Should complainant's treating physician permit or recommend that
complainant may return to the Coatesville Post Office, Coatesville Post
Office management will provide a non-hostile work environment free of
harassment for complainant at all times and/or regardless of whether
she is on Code 68 or 69 and postal management will continue to treat
her with dignity and respect.
Postal management agrees that there will be no retaliation for filing
these EEOC complaints.
As detailed on appeal, complainant claimed that the agency breached
provisions 4, 5, 7 and 10 of the settlement agreement. Specifically,
she claimed that the settlement agreement was breached as a result of
the harassment she experienced and by the agency's letter dated July 7,
1999, which concluded that complainant was unfit for duty. The agency did
not respond to complainant's claim of breach; therefore, the Commission
concludes that the agency has, in effect, denied that it breached the
settlement agreement.
The crux of the July 7, 1999 letter is that complainant is unfit for
duty. In that letter, management did not determine that the scope of
complainant's duties in her current position were to change; rather,
management determined that she was unfit for the duties required by
her position. Provisions 4 and 5 only require management to adhere
to complainant's medically defined work limitations/restrictions, to
comply with those restrictions in assigning light or limited duty work,
and to consult complainant's physician if should there be a change
in limitation and/or the scope of duties that complainant can perform.
There is no provision in the settlement agreement requiring management to
allow complainant to remain in her position or to consult complainant's
physician under all circumstances. Therefore, the Commission finds that
the agency did not breach provisions 4 and 5 when it issued the letter
dated July 7, 1999 pertaining to complainant's fitness for duty.
Regarding provision 7, the agency is required by law to provide
complainant with a non-hostile work environment free of harassment,
regardless of whether it is specified in a settlement agreement.
Additionally, to the extent that complainant attempts to state a claim
of reprisal in violation of provision 10, the Commission notes that a
complaint which claims reprisal or further discrimination 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. See 29 C.F.R. �
1614.504(c). Complainant should contact the agency's EEO office if she
wants to pursue a separate claim of discrimination.
For the reasons set forth in this decision, the Commission finds that
complainant failed to show breach of the May 6, 1999 settlement agreement.
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
November 2, 2001
__________________
Date