01A20449_r
09-17-2002
Roderick E. Patrick, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Roderick E. Patrick v. United States Postal Service
01A20449
September 17, 2002
.
Roderick E. Patrick,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20449
Agency Nos. 2D-230-0005-00, 2D-230-0097-00, 2D-230-0172-00, 2D-230-0108-01
DECISION
Complainant filed a timely appeal with this Commission from a decision by
the agency dated September 10, 2001, finding that it was in compliance
with the terms of the June 6, 2001 settlement agreement into which the
parties entered.
The settlement agreement provided, in pertinent part, that:
2.01 The USPS (heretofore referred to as the "Agency") and [Complainant]
(heretofore referred to as the "Complainant") agree to resolve
all outstanding claims related to the Complainant. The Complainant
will be paid a sum of five thousand dollars ($5,000) in addition to a
payment of five thousand dollars ($5,000) in attorney fees to be paid to
[Complainant's attorneys], posted within 45 calendar days. The payees
are responsible for payment of state and federal taxes according to law
and regulation.
. . .
2.06 The letter of discipline of 12/00 will be removed and expunged from
the Complainant's Official Personnel File (OPF) within 30 calendar days.
2.07 A letter of regret will be issued from [S1] to the Complainant
posted within 30 calendar days. It is understood that the letter and
its contents are confidential and may not be distributed or its contents
shared with the exception of immediate family members and any individuals
necessary for the purposes of enforcement of this agreement.
2.08 A letter of concern, from the Agency, addressing incidents at
the Sea Pines Station involving [S1] and [C1] will be posted to the
Complainant within 30 calendar days. It is understood that the letter
and its contents are confidential and may not be distributed or its
contents shared with the exception of immediate family members and any
individuals necessary for the purposes of enforcement of this agreement.
By letter to the agency dated July 13, 2001, 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 issue the letter of concern and
the letter of regret as provided in paragraphs 2.07 and 2.08 in a
timely manner. By subsequent letter to the agency dated August 22,
2001, complainant alleged that the agency had also failed to remove
the letter of discipline from his OPF, as provided by paragraph 2.06,
and that this breach had prevented his selection for the position of
Safety Officer. In its September 10, 2001 decision, the agency concluded
that the letter of concern and the letter of regret had been sent to
complainant's attorney and conceded that the agency did not remove the
letter of discipline from complainant's OPF as agreed by July 6, 2001.
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, we find the agency substantially complied with
paragraphs 2.07 and 2.08 of the settlement agreement. Complainant admits
receiving both the letter of regret and the letter of concern, by at
the latest, October 11, 2001. Furthermore, the record shows that the
agency sent both of the letters in a timely manner, but that one of the
letters was misaddressed (wrong zip code) and was resent at a later date
to the correct address.
The Commission finds that the agency breached paragraph 2.06 of the
settlement agreement. The December 2000 Letter of Discipline should
have been removed from complainant's OPF no later than July 6, 2001.
The record does not contain evidence showing that the December 2000 Letter
of Discipline has been removed from complainant's OPF. The agency does
not claim that the December 2000 Letter of Discipline has been removed
from complainant's OPF. The Commission finds that complainant's claim
that he was not placed into the Safety Officer position due to the
agency's breach of the settlement agreement is too speculative and is
not supported by the evidence of the record. The Commission finds that
the appropriate remedy for the breach is specific enforcement of the
agreement. Therefore, we shall order the agency to remove the December
2000 Letter of Discipline from complainant's OPF.
The portion of the agency's determination finding no breach of paragraphs
2.07 and 2.08 of the settlement agreement is AFFIRMED. The portion of
the agency's determination finding no breach of paragraph 2.06 of the
settlement agreement is REVERSED and we REMAND the matter to the agency
for further processing as directed herein.
ORDER
Within 30 calendar days of the date this decision becomes final, the
agency shall remove and expunge the December 2000 Letter of Discipline
from complainant's Official Personnel File. The agency shall place
evidence into the record showing that the December 2000 Letter of
Discipline has been expunged from complainant's Official Personnel File.
Within 30 days of the date this decision becomes final, the agency
shall send complainant a letter stating that the December 2000 Letter of
Discipline has been expunged from complainant's Official Personnel File.
A copy of the letter to complainant 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
September 17, 2002
__________________
Date