Roderick E. Patrick, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 17, 2002
01A20449_r (E.E.O.C. Sep. 17, 2002)

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