01a31417_r
05-08-2003
Carlos E. Toro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carlos E. Toro v. United States Postal Service
01A31417
May 8, 2003
.
Carlos E. Toro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31417
Agency No. 4A-006-0100-00
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's complaint of unlawful employment discrimination
that the parties had settled is proper. See 29 C.F.R. � 1614.504.
On January 10, 2001, the parties entered into a settlement agreement
resolving the complaint. The settlement agreement provided that:
[Complainant] and management agree to communicate and coordinate his
family medical leave requests to ensure proper processing and approval -
if warranted.
Management will insure that all information on the Family Medical Leave
Act (FMLA) - including the proper procedures for requesting FMLA, is
posted on a bulletin board that is accessible to all employees.
[Complainant] will provide management with additional dates from the
past year when the approved sick leave was charged to annual leave -
other than the dates of 8/15/00 and 8/31/00. Management will research
and make necessary adjustments - if warranted.
Management will ensure that in order to avoid any continued problems
(which [complainant] claims has created the need for him to seek
medical treatment), any future contact between [complainant] and highway
contractor [an identified individual] will be eliminated. Contractor
will be instructed that any necessary communication with [complainant]
regarding any aspect of the dispatches will be through management.
Thereafter, complainant alleged that the agency breached Provisions 1 and
4 of the settlement agreement. Specifically, complainant indicated that
on May 16, 2001, his request for a reduced work schedule under FMLA was
denied; on May 17, 2001, he was given a letter of warning; on October
2, 2001, his supervisor asked him to put his hands in a garbage can to
retrieve mail that complainant had previously discarded; and on October
5, 2001, his Postmaster told him not to return to work. Complainant also
indicated that the contractor, identified in Provision 4 of the settlement
agreement, continued entering the premises. Complainant did not dispute
the agency's compliance with the remaining provisions of the settlement
agreement.
Upon review, the Commission finds that there is no evidence in the record
that management failed to communicate and/or coordinate with complainant
concerning his FMLA request under Provision 1 of the settlement agreement.
It is noted that the settlement agreement did not, specifically, guarantee
that complainant's FMLA requests or his work schedule change requests
will be granted. In fact, Provision 1, specifically, provides that
complainant's FMLA requests will be approved only if they are warranted.
Thus, the Commission finds that the agency did not breach Provision 1
of the settlement agreement.
With regard to Provision 4 of the settlement agreement, complainant
has not indicated that the contractor talked to complainant or made any
direct contact with complainant. The agency, undisputed by complainant,
stated that the Postmaster told the contractor not to have any contact
with complainant and not to come into the Post Office. Based on the
foregoing, the Commission finds that the agency did not breach Provision
4 of the settlement agreement.
To the extent that complainant is alleging that subsequent acts of
retaliation occurred, he should contact an EEO Counselor pursuant to
29 C.F.R. � 1614.105 if he wishes to pursue a separate complaint of
discrimination under 29 C.F.R. � 1614.106. The Commission does not
address in this decision whether such claims would be properly dismissed
for any reason pursuant to 29 C.F.R. � 1614.107.
Accordingly, the agency's decision is hereby 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
May 8, 2003
__________________
Date