0120083527
10-28-2008
Enriqueta Torres, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Enriqueta Torres,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083527
Agency No. 1H336002608
DECISION
Complainant1 filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 15, 2008, finding that it was
in compliance with the terms of the March 4, 2008 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
In late January-February 2008, complainant received EEO counseling on
a claim of national origin (Hispanic) discrimination concerning alleged
harassment by a 204-B acting supervisor, including adverse and disparate
treatment with regard to breaks, off-days and leave. Among other things,
it appears that complainant alleged that the supervisor took advantage
of her limited English proficiency to treat her differently from other
employees. Complainant and the agency participated in a mediation
session regarding her concerns, and on March 4, 2008, entered into a
written settlement agreement.
The settlement agreement provided, in pertinent part, that:
(1) Manager, L& DC [JC] will ensure that there will be service talks
to all employees explaining the rules for breaks and lunches for the
next 4 weeks from the date of this agreement.
(2) [Identified 204-B Supervisor] will get back with answers to
questions when complainants inquire within a reasonable time.
(3) (Hiring) Management has explained the hiring practices and
complainants have an understanding.
(4) Management and complainants will address one another respectfully
i.e. when communicating with each other when given any situation.
(5) All pending EEO discrimination claims are settled, waived,
and released whether specifically identified in this agreement up to
the date of this agreement.
(6) [Identified 204-B Supervisor] will change complainant's schedule
to allow for Friday night and Saturday night off on a temporary basis
for as long as management can do so in its sole discretion.
According to the agency's FAD, by letter to the agency dated May 2,
2008, complainant alleged that the agency was in breach of the settlement
agreement. It is impossible to determine what the complainant felt was
breached as the agency has failed to include complainant's letter in the
file it forwarded to this Commission on appeal. In its July 15, 2008 FAD,
the agency concluded it was not in breach, that safety talks were given,
but since complainant was not available the EEO person could not return
to answer her questions.
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, the agency failed to submit any information to
support its contention that it was not in breach of the agreement.
No evidence has been submitted in the form of affidavits or documentary
evidence to support the agency's bare contentions in its FAD that it
fully complied with all the provisions of the agreement. In Ericson
v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993),
the Commission stated that "the agency has the burden of providing
evidence and/or proof to support its final decisions." See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
As the agency has not provided any evidence whatsoever to support its
FAD, the Commission will presume that the agency is in breach of the
agreement and that the underlying complaint should be reinstated.
Further, on appeal, and in earlier letters to the agency, complainant
claims she was the further victim of unlawful retaliation for
filing her original complaint when her employment was terminated by
the agency shortly after she signed the settlement agreement. The
Commission determines that complainant attempted to pursue her claim
of retaliatory termination with the agency without response. In the
interest of judicial economy, the Commission will deem this claim as a
request to amend complainant's original complaint. See EEOC's Management
Directive (MD)-110, Chap. 5, III (B)(2), Ex. 6 (subsequent retaliation
for filing a complaint is proper amendment as a new claim that is
like or related to the pending claim). Therefore, when processing the
remanded complaint, it shall be amended to include complainant's claim
of discriminatory/retaliatory termination.
Accordingly, the agency's FAD is reversed and the underlying complaint,
as amended to include the termination claim, is remanded to the agency
for further processing in accordance with the following Order.
ORDER (E0408)
The agency is ordered to process the remanded complaint, as amended to
include the termination claim, in accordance with 29 C.F.R. � 1614.108
et seq. The agency shall acknowledge to the complainant that it has
received the remanded claims within thirty (30) calendar days of the date
this decision becomes final. The agency shall issue to complainant a
copy of the investigative file and also shall notify complainant of the
appropriate rights within one hundred fifty (150) calendar days of the
date this decision becomes final, unless the matter is otherwise resolved
prior to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
October 28, 2008
__________________
Date
1 Complainant is one of four Hispanic employees who settled their
complaints on the same date. The settlement agreements include the same
terms, except this agreement contains term 6 and the others do not. All
four complainants alleged a breach of the settlement agreement. All
four have been terminated from their positions. The complainants filed
a joint appeal to the Commission and each is being processed under a
seperate appeal number.
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0120083527
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120083527