01a40364
05-20-2005
Vernon, J Richards, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area) Agency.
Vernon, J Richards v. United States Postal Service
01A40364
05-20-05
.
Vernon, J Richards,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area)
Agency.
Appeal No. 01A40364
Agency No. 4G720012302
DECISION
Prior to this appeal, complainant filed a timely appeal with this
Commission from a final decision by the agency dated March 2, 2005,
finding that it was in compliance with the terms of the March 12, 2003
settlement agreement into which the parties entered. Richards v. United
States Postal Serv.,EEOC Appeal No. 01A32509 (August 7, 2003); see 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
In that appeal, complainant alleged that the agency failed to comply with
two terms of the settlement agreement: (1) the agency failed to release
all documents and findings contained in a sexual harassment investigation
file to complainant; and (2) the agency failed to pay complainant $4,000.
Richards, EEOC Appeal No. 01A32509 (August 7, 2003). The Commission
determined that the record did not contain sufficient information such
that we could render a decision as to whether the agency breached the
settlement agreement. Id. We ordered the agency to place objective
evidence in the record showing that it had complied with the terms of
the settlement agreement and to issue a decision determining whether the
agency complied with those provisions of the settlement agreement. Id.
On September 10, 2003, complainant filed a petition for enforcement
since the agency had not yet complied. The EEOC responded with a
letter dated September 24, 2003, stating that complainant's request was
premature since the agency had until October 2003 to comply with the
EEOC's order. Complainant next submitted an addendum to his petition
for enforcement to the EEOC, dated September 23, 2003. In response, the
EEOC sent complainant a letter, in Compliance Tracking Case No. 06A3118
(September 30, 2003), stating that we received a report from the agency
and the Commission determined that the agency had complied with our
order in EEOC Appeal No. 01A32509. Complainant filed this appeal with
the Commission on October 7, 2003, alleging that the agency has not
complied with the Commission's decision.
The agency issued a decision on March 2, 2005, finding that it satisfied
the contested provisions of the settlement agreement. Specifically, the
agency found that complainant was sent the documents and the missing pages
were either irrelevant or were not contained in the sexual harassment
investigation. The agency also found that it issued a check for $4,000
to complainant dated March 17, 2003.
On appeal, the agency provided evidence that it complied with the terms
of the settlement agreement. Specifically, the agency provided the
statements of the Labor Relations Specialist (LRS), in the Arkansas
District, that she provided copies of all the documents provided to her
by the Office of Manager-Human Resources to complainant on February 19,
2003. LRS stated that she did not remove any documents from the file.
Complainant states on appeal that he received the documentation, but
alleges that documents are missing since they are listed in the documents
provided but were not contained in the documents he received. However,
it is unclear from the record how complainant knows that these documents
are missing. Complainant does not provide any evidence to demonstrate
that these document should have been included in the sexual harassment
investigation. Complainant merely alleges that these documents should
have been provided to him. We note that complainant has the burden of
proof to show that the agency breached the settlement agreement. See Vega
v. United States Postal Serv., EEOC Appeal No. 01986613 (June 30, 200);
Pearson v. United States Postal Serv., EEOC Appeal No. 01A02918 (July 6,
2001), request for reconsideration denied, EEOC Request No. 05A10957 (July
6, 2001). Because complainant failed to provide corroborating evidence
to show that the missing documentation should have been included with
the documents that he received, we find that the agency complied with
our order in EEOC Appeal No. 01A32509. Further, the agency has provided
a copy of a check addressed to complainant for $4,000, and complainant
does not raise this issue on appeal. Therefore, we affirm the agency's
final decision finding that the agency complied with the terms of the
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
____05-20-05______________
Date