01a54924r
11-15-2005
Anthony Greene, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Anthony Greene v. United States Postal Service
01A54924
November 15, 2005
.
Anthony Greene,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01A54924
Agency No. 1E-981-0009-05
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 11, 2005, finding that it was in
compliance with the terms of the February 24, 2005 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
1. [Management] will write a letter acknowledging [complainant's] FMLA
approval. Approval will be dated from August 1, 2004. A copy of this
letter will be sent to [complainant].
[Complainant's Supervisor] and [complainant] will review [complainant's]
floor file within seven days of this agreement.
Complainant's supervisor will immediately withdraw a letter of discipline
dated August 5, 2003.
Complainant's supervisor agrees to withdraw another letter of discipline
from complainant's file one year early on May 27, 2005. Complainant's
supervisor will write a letter outlining this agreement and will
send copies of this letter to complainant and the District Office.
Complainant's supervisor will do this within a week of this agreement.
Management will withdraw a letter of discipline from complainant's file.
This letter was issued by [a management official] on March 26, 2003.
Management will withdraw this letter within a week of this agreement.
Complainant will meet with management by March 15, 2005 to clarify
which absences, since August 1, 2004, are FMLA.
By letter to the agency dated March 23, 2005, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to undertake the actions promised in
provisions 2, 3, 4, 5, and 6.
In its July 11, 2005 FAD, the agency concluded that it had complied with
the relevant terms of the agreement. Specifically, the decision noted
that in compliance with provisions 1 and 6, the FMLA Coordinator stated
that he wrote a letter dated March 13, 2005 to complainant informing him
that his request for FMLA leave was approved. The agency maintained
that the letter asked complainant to identify any absences related to
his FMLA condition since August 9, 2004 so that the necessary changes to
complainant's Absence Analysis form could be made. The agency maintained
that complainant failed to respond, and management did not meet with
complainant by March 15, 2005 because complainant was out of the country
on annual leave during that time period but wrote the promised letter
when complainant returned to work. The agency also determined that it
complied with provision 5 when on March 26, 2005, management wrote a
memorandum to complainant stating that the Letter of Warning issued to
him on March 26, 2003 had been removed from his Official Personnel File
(OPF). The agency further noted that complainant's supervisor maintained
that he attempted to meet with complainant the week of March 7 - 11, 2005
and made arrangements for him to review his files. The agency concluded
that complainant initially did not review the files because he wanted his
representative to be present, but ultimately did review the files with his
supervisor in compliance with provision 2. Finally, the agency determined
that an outline was made of the settlement agreement beyond the one-week
time frame specified in the agreement, but the letter of discipline was
removed within one week of the agreement, as specified in provision 5.
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.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996).
In the instant case, complainant alleged that the agency breached
provisions 2, 3, 4, 5, and 6 of the settlement agreement. Although the
agency's final decision referenced documentary evidence and management
responses that purportedly support its legal and factual conclusions,
there is no appeal record evidence to support their conclusions, such
as affidavits from management officials or copies of the referenced
documents. The Commission has held that the "agency has the burden of
providing evidence and/or proof to support its final decisions." Ericson
v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993).
We conclude that the agency has provided no persuasive evidence to rebut
complainant's breach claims. Therefore, we find that the agency breached
provisions 2, 3, 4, 5, and 6 of the agreement. See Ellison v. United
States Postal Service, EEOC Appeal No. 01A54595 (October 5, 2005)(breach
found where agency failed to provide documentary or affidavit evidence
supporting the conclusions contained its final decision). To remedy
a finding of breach, the Commission may order reinstatement of the
underlying complaint, or enforcement of the agreement's terms. See 29
C.F.R. 1614.504(c). In this case, we note that the subject agreement
reflects that the parties intended that the agency would undertake the
promised actions within a reasonable time after the agreement was signed
and for some actions, on particular dates. Because the time period for
reasonable compliance with significant portions of the agreement has now
passed, we find that the appropriate remedy is to order reinstatement
of complainant's underlying complaint.
Accordingly, the Commission REVERSES the agency's finding of no breach
and REMANDS this matter to the agency for processing consistent with
the order below.
ORDER (E0900)
The agency is ORDERED to reinstate complainant's underlying EEO complaint
from the point processing ceased, in accordance with 29 C.F.R. � 1614.108.
The agency shall acknowledge to complainant that it has resumed processing
at the point processing ceased within thirty (30) calendar days of the
date that this decision become final.
A copy of the agency's letter of acknowledgment notifying complainant
of the reinstatement of his complaint must be sent to the Compliance
Officer referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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 15, 2005_____________
Date