01A04777_r
09-24-2001
Phillip L. Barnes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Phillip L. Barnes v. United States Postal Service
01A04777
September 24, 2001
.
Phillip L. Barnes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04777
Agency No. 4D-230-0175-99
DECISION
Complainant timely appealed the agency's decision that denied his claim
that the settlement agreement entered into between the parties had
been breached.
The record reveals that on June 24, 1999, complainant and the agency
entered into a settlement agreement regarding an EEO complaint. The
settlement provided, in pertinent part, that in exchange for complainant
voluntarily withdrawing his complaint, the agency agreed as follows:
1. [Complainant's supervisor] agrees to withdraw from [complainant's]
personnel folder the Letter of Warning dated April 13, 1999 no later
than July 13, 1999.
3. [Complainant's supervisor] agrees that she will provide [complainant]
a very favorable performance rating, with no reference to the Letter of
Warning for his performance under her supervision through today.
On May 19, 2000, complainant notified the agency that it had breached the
settlement agreement. According to complainant, the Letter of Warning
was included as an exhibit in the investigative file for another EEO
complaint that he had filed. Complainant stated that an additional
Letter of Warning, dated July 22, 1999, was also improperly included in
the record of that complaint.
By agency decision dated May 31, 2000, the agency determined that it had
not breached the settlement agreement. The agency stated that the Letter
of Warning, dated April 13, 1999, was provided as comparative information
of discipline issued to craft employees in Portsmouth, Virginia in 1999.
The agency noted that the exhibit does not state that it came from
complainant's personnel records, and that complainant does not allege
that the Letter of Warning was referenced in his performance rating.
The agency stated that the settlement agreement did not provide that there
would be no reference to the Letter of Warning in any of complainant's
future EEO complaints.
On appeal, complainant argues that in a recent meeting, it was agreed
that no reference should be made to information after it is no longer
part of his official personnel folder. Complainant maintains that the
letter of warning should have been removed from all agency records.
With regard to the merits of complainant's claim of breach, we find
that the agency has not established that it complied with the settlement
agreement. Complainant claims that the agency breached the settlement
agreement by referring to his Letter of Warning, dated April 13, 1999, in
his subsequent EEO complaint. Upon review of the settlement agreement,
we note that the agreement provided that the Letter of Warning would
be removed from complainant's official personnel folder and it would
not be referenced in complainant's performance evaluation. Given that
the agency has failed to establish that the Letter of Warning was in
a location other than complainant's official personnel folder, we must
vacate the agency's decision so that a supplemental investigation can
be conducted. We note that the settlement agreement did not address
the Letter of Warning, dated July 22, 1999, that was also raised in
complainant's allegation of breach. Accordingly, the agency's decision
that it did not breach the settlement agreement is VACATED. This matter
is hereby REMANDED for further processing pursuant to the Order below.
ORDER
The agency shall determine whether the Letter of Warning, dated April 13,
1999, was located in complainant's official personnel folder at the time
that the Letter of Warning was inserted in the investigative record of
the subsequent complaint filed by complainant. The agency shall state
all of the locations of the Letter of Warning at that time. The agency
shall also determine whether the Letter of Warning is currently present
in complainant's official personnel folder. The agency shall supplement
the record with an affidavit from an official who has personal knowledge
with regard to these issues. Within thirty (30) calendar days of the date
this decision becomes final, the agency shall either reissue a decision
refusing to reinstate the complaint or issue a letter to complainant
informing him that the agency is reinstating his complaint from the
point processing ceased.
A copy of the agency's new decision and/or letter to complainant informing
him of the resumption of processing of his complaint, as appropriate,
must be sent to the Compliance Officer as referenced herein.
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
September 24, 2001
__________________
Date