01a20689_r
02-20-2002
Richard L. Aguilar, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard L. Aguilar v. United States Postal Service
01A20689
February 20, 2002
.
Richard L. Aguilar,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20689
Agency No. 4-G-780-0331-99
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 July 15, 1999, the parties entered into a
settlement agreement which provided, in pertinent part:
An apology to [complainant] by [a Station Manager].
Retraining in employee relations by [the Station Manager].
The parties agree that [the Station Manager] will not have any supervisory
functions concerning [complainant] if they should be assigned to the
same station.
On August 10, 2001, complainant alleged that the agency breached the
settlement agreement. Specifically, complainant indicated that the
Station Manager was recently assigned as a carrier supervisor at his
station, and he was worried that they might get into a confrontational
situation in the near future. On September 12, 2001, the agency issued
its decision stating that it did not breach the settlement agreement.
The agency indicated that the Station Manager was assigned as a late, PM
supervisor and since complainant was not on the overtime-desired list,
there should be no contact between them for any reason. Specifically,
the agency stated that the Station Manager did not have any supervisory
functions towards complainant in accordance with item 3 of the settlement
agreement.
On appeal, complainant contends that on two occasions, he had to have
other carriers relay messages to the Station Manager in order not to
provoke any exchange with her. Specifically, complainant indicates that
he missed his lunch and breaks on other occasions when he realized that he
would go beyond his authorized time to deliver his route since he would
have been required to call in and let a PM supervisor, i.e., the Station
Manager, know if he could not complete his route in the authorized time.
After a review of the record, the Commission finds that the agency did
not breach the settlement agreement. Specifically, with regard to item
3, although the Station Manager was assigned to the carrier supervisory
position in complainant's station, there is no dispute between the
parties that the Station Manager was not complainant's supervisor.
In fact, the record indicates that the Station Manager was, clearly,
assigned to the PM supervisory position after complainant's duty hours.
Although complainant contends on appeal that he had to have other carriers
relay messages to the Station Manager, there is no evidence in the
record that complainant was required to report, directly, to the Station
Manager on those occasions nor is there any evidence that the Station
Manager required him to do so under her supervisory role. It appears
that complainant was concerned about a possible contact/confrontation
with the Station Manager due to her being assigned to his station.
Complainant was also concerned about his being subjected to a hardship,
i.e., trying to finish his work during his duty hours in order not to have
direct contact with the Station Manager. However, the Commission notes
that the settlement agreement does not specifically prohibit the Station
Manager's assignment at issue nor does it prohibit any contact from the
Station Manager. 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
February 20, 2002
__________________
Date