01A30670_r
09-11-2003
Teresa Chen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Teresa Chen v. United States Postal Service
01A30670
September 11, 2003
.
Teresa Chen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30670
Agency No. 1F-927-1050-95
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated October 8, 2002, finding that it was in
compliance with the terms of the March 22, 1999 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part:
[4] That the injury compensation office will contact OWCP to determine
what monies were lost due to time missed from work; and determine
whether or not their management decision contrary to payment was upheld.
If such decision was not upheld, the injury compensation office will
[implement] payment.
By letter to the agency dated August 26, 2002, 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 she had submitted the necessary paperwork
to M1 as agreed, but that M1 never submitted the paperwork to OWCP
necessary for complainant to receive compensation for her lost time.
Complainant stated that the doctors' and hospital bills were paid by
OWCP when they were submitted. Complainant adds that she has retained
copies of the paperwork that she sent to M1, so that if the agency no
longer has it, she will submit additional copies.
In its October 8, 2002 decision, the agency concluded that M1, the human
resources official identified in the settlement agreement had retired.
Nevertheless, the agency determined that all claims for compensation are
within the sole authority of the Department of Labor and that complainant
was receiving payments in the amount of $531.00 every 28 days from OWCP.
The agency further explained the compensation process, and stated that
without specific dates, the agency could not determine if monies were
still owed to complainant. The agency therefore concluded that no breach
of the settlement agreement had occurred.
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 has failed to specifically
address complainant's allegation that the agency failed to "contact OWCP
to determine what monies were lost due to time missed from work" and
�determine whether or not their management decision contrary to payment
was upheld.� Complainant is not alleging that payment was refused by
OWCP or the Department of Labor. Rather, complainant alleges that after
she supplied documentation regarding her lost time to M1, he (that is,
the agency) failed to act, so that complainant's paperwork was never
submitted in turn, to OWCP, as agreed in paragraph 4 (as identified in
this decision). We find that M1's retirement does not excuse the agency's
obligation to perform under the settlement agreement or absolve the agency
of its duty to provide evidence of its performance. The agency has not
addressed whether it has made such contact as required under paragraph
4 of the agreement. Therefore, we shall remand the matter so that the
agency may show that it has made the contact as required under paragraph
4 and made the subsequent determination as to whether �their management
decision contrary to payment was upheld.� Furthermore, the agency, if
it determines that the management decision was contrary to payment was
not upheld, should show in the record that such payment was implemented.
Accordingly, we VACATE the agency's determination that no breach of the
settlement agreement occurred. We REMAND the matter to the agency for
further processing pursuant to the Order herein.
ORDER
The agency shall place in the record the following evidence in order
to show that the agency has complied with paragraph 4 (as identified in
this decision) of the March 22, 1999 settlement agreement:
Affidavits from appropriate agency officials and documentation
demonstrating that the agency contacted OWCP to determine what monies
were lost due to time complainant missed from work.
Affidavits from appropriate agency officials and documentation
demonstrating that the agency determined whether or not their management
decision contrary to payment was upheld.
If a management decision contrary to payment was not upheld, then the
agency should submit evidence showing that complainant has been paid.
If the agency is unsure of the dates or monies at issue, then the agency
should contact complainant for clarification of the dates or monies
at issue.
Within 30 days of the date this decision becomes final the agency shall
issue a new decision determining whether the agency breached paragraph
4 of the settlement agreement. A copy of the agency's new decision must
be sent to the Compliance Officer 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 11, 2003
__________________
Date