05990346_r
06-15-2001
Sonia Drouillard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sonia Drouillard v. U.S. Postal Service
05990346
June 15, 2001
.
Sonia Drouillard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05990346
Appeal No. 01974336
Agency No. 5-P-1329-92
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Sonia
Drouillard v. U.S. Postal Service, EEOC Appeal No. 01974336 (January
7, 1999). EEOC Regulations provide that the Commission may, in its
discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(b).
Complainant claims that the agency breached the April 28, 1993 settlement
agreement executed by the parties when it failed to purge her personnel
record of all disciplinary actions as specified in provision 2 of
the agreement.<1> As a remedy, complainant asks that her complaint
be reinstated and that she be provided with a hearing by an EEOC
Administrative Judge.
In its April 11, 1997 decision, the agency acknowledged that it had
failed to comply with provision 2, but claimed that this was due to an
administrative oversight. However, the agency additionally
stated that complainant's record had recently been purged, and that it
was now in compliance with the settlement agreement. Complainant appealed
this determination to the Commission.
In the previous decision, the Commission vacated the agency's decision,
and ordered the agency to purge complainant's official personnel record,
or if it had already done so, to produce verification that it had removed
the disciplinary actions from complainant's official personnel record.
Additionally, the Commission specifically declined to reinstate the
underlying complaint and/or order an immediate hearing, finding that
complainant had failed to set forth sufficient justification to warrant
this remedy.
On January 7, 1999, in conjunction with issuing the previous decision,
the Commission docketed the case as EEOC Compliance No. 06990472 in order
to implement the Commission's ORDER in this case. However, on January
29, 1999, complainant filed the instant request for reconsideration,
and the Commission closed EEOC Compliance No. 06990472 on February 24,
1999, prior to receiving the documentation requested in the ORDER.
In her request, complainant argues that the agency and the Commission
acknowledge that the agency failed to comply with provision 2 of the
settlement agreement, and that the agency's subsequent compliance with
this provision should not defeat her right to complaint reinstatement
and a hearing. In response, the agency argues that complainant's
request for reconsideration does not satisfy the regulatory criteria,
and asks that the Commission deny her request.
As noted in the previous decision, under 29 C.F.R. � 1614.504(c),
the Commission has the authority to order the agency to comply with the
settlement agreement, or in the alternative, to reinstate the complaint.
In this case, provision 2 of the settlement agreement states only that
complainant's personnel record is to be purged of all disciplinary
actions, but no time period for doing so is set forth. Moreover,
while the agency did not provide documentary verification, it avows that
complainant's file was purged once she alerted them to this omission.
In this regard, we note that complainant does not claim that the agency
failed to purge her personnel file after she filed the breach claim,
but instead argues that the prior noncompliance should constitute
technically sufficient grounds to reinstate her complaint and afford
her an immediate hearing.
Notwithstanding complainant's arguments to the contrary, we find that
the Commission properly exercised its authority in the previous decision
by ordering the agency to comply with the settlement agreement rather
than reinstating the complaint and ordering a hearing.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01974336 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall provide complainant, her representative, and the
Commission, with evidence that complainant's official personnel file has
been �purged of all disciplinary actions,� in accordance with provision
(2) of the settlement agreement. Included, but not limited to, the
purging of all disciplinary actions shall be the May 5, 1993 memorandum
by the agency's Labor Relations Specialist, Customer Service, which
memorandum formed the basis of complainant's allegation of noncompliance
in the present matter.
Proof of compliance with the Commission's ORDER shall include, but need
not be limited to, a statement confirming agency compliance, under oath
or affirmation, by the Custodian of the Official Personnel Folder,
Personnel Office, Santa Ana District, City of Industry, California.
The agency may designate another official to review complainant's official
personnel file and provide a statement under oath or affirmation that
all references to disciplinary actions against complainant by the agency,
including the May 5, 1993 memorandum, have been purged from complainant's
official personnel file.
Proof of compliance with the Commission's ORDER must be submitted to
the Commission's Compliance Officer, as referenced below.
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.
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
June 15, 2001
__________________
Date
1Provision 2 states that: �[Complainant's] Official Personnel Folder
(OPF) shall be purged of all disciplinary actions.�