01a21847_r
07-25-2002
Kathryn M. Cerilli, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathryn M. Cerilli v. United States Postal Service
01A21847
July 25, 2002
.
Kathryn M. Cerilli,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21847
Agency No. 4A-105-0167-97
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.
The record indicates that on May 31, 1995, the parties entered into a
settlement agreement which provided, in pertinent part, that:
Supply FFD letter from [an identified agency official] to Counselee.
Delete all records of SL abuse.
Management will not discuss SL use of Counselee with other employees.
Management will rescind all EAP data from postal files and records.
A stress free work environment will be created.
Training records of SL abuse will be rescinded.
Complainant alleged that the agency breached provisions 3 and 5 of the
settlement agreement. On August 19, 1997, the agency previously issued
its decision finding the alleged breach claim untimely. Complainant
appealed. The Commission, in EEOC Appeal No. 01976958 (September 1,
1998), denial of request for reconsideration, EEOC Request No. 05990036
(Dec. 3, 2001), found the breach claim timely and ordered the agency to
specifically address the subject claim relating to provisions 3 and 5
of the settlement agreement.
On January 3, 2002, the agency issued its decision at issue finding
no settlement breach. With regard to provision 3 of the settlement
agreement, the agency stated in its decision that according to its
management officials, they did not discuss complainant's sick leave
use with any other employees; rather, they only discussed such among
managerial officials as a part of their functions and when necessary to
safeguard the employee's safety and health. The Commission finds that
complainant has failed to show that the agency breached provision 3 of
the settlement agreement.
With regard to provision 5, complainant alleged that she was
subjected to discrimination which violated the settlement agreement.
Specifically, complainant indicated that she was subjected to harassment.
EEOC Regulation 29 C.F.R. � 1614.504(c) provides that allegations
that subsequent acts of discrimination violate a settlement agreement
shall be processed as a separate complaint rather than as a claim of
breach. The Commission finds that the alleged incidents that led to
an alleged breach of provision 5 have been properly adjudicated as a
separate complaint in EEOC Appeal No. 01976958, denial of request for
reconsideration, EEOC Request No. 05990036. Furthermore, provision 5
of the settlement agreement is too vague to permit enforcement.
Accordingly, the agency's decision finding no breach of the settlement
agreement is 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
July 25, 2002
__________________
Date