01995795_r
07-12-2001
Barbara A. Janak, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barbara A. Janak v. United States Postal Service
01995795
July 12, 2001
.
Barbara A. Janak,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995795
Agency No. 4-G-770-0007-97
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated June 17, 1999, finding that the agency did not breach
the April 23, 1998 settlement agreement entered into by the parties.
The issue on appeal is whether the agency breached the settlement
agreement. The settlement agreement provided:
Ms. Janak will be treated professionally, with dignity and respect
at all times. Ms. Janak will be addressed by her name �Ms. Janak� or
�Janak� only, at all times. [Complainant's supervisor] has apologized to
Ms. Janak for calling her �Sister.� [Complainant's supervisor] will only
acknowledge Ms. Janak in the instruction of her duties, mail and route.
Complainant claims that on August 24, 1998, the agency breached the
settlement agreement when her supervisor addressed her as �sister� in a
loud and angry tone in front of other employees and patrons. Complainant
also claims that the agency attempted to discredit complainant's
claim of breach, discredit her representative, and interfere with the
processing of her claim in the instant case when the agency stated that
the EEO Office made contact with complainant's representative, and, the
agency claimed that complainant's representative indicated that he did
not believe that the subject of the complaint involved the breach of a
previous EEO settlement. The agency correctly informed complainant to
contact the agency's EEO office if she wanted to pursue this separate
claim of discrimination.
Upon review, the Commission is unable to determine whether the settlement
agreement has been breached. In its decision the agency concluded that it
did not breach the settlement agreement. The supervisor, who complainant
claimed called her �sister,� produced an affidavit dated June 17, 1999,
the date that the agency's decision was issued, stating that he did not
call complainant �sister� after the settlement agreement was in effect.
He also stated that he had no contact with complainant on August 24, 1998.
Complainant indicates that the August 24, 1998 remarks by the supervisor
were made �on the work room floor - in front of other employees.�
The record does not indicate that the agency attempted to obtain
statements from any witnesses (other than the supervisor) who might have
heard the alleged August 24, 1998 remarks by the supervisor. Therefore,
we shall remand the matter so that the agency may conduct an investigation
as to whether the supervisor called complainant �sister� on August
24, 1998. The agency shall provide complainant with the opportunity to
provide names of witnesses who might have heard the alleged August 24,
1998 remarks by the supervisor. Thereafter, the agency shall issue a
new decision regarding complainant's claim of breach of the settlement
agreement.
The agency's decision finding no breach of the April 23, 1998 settlement
agreement is VACATED, and the claim of breach is REMANDED to the agency
for further processing in accordance with the Order below.
ORDER
The agency shall:
Contact complainant and give complainant an opportunity to provide
the name of any witnesses that may have heard any statements made by
complainant's supervisor to complainant on August 24, 1998, in purported
violation of the April 23, 1998 settlement agreement.
Attempt to contact any witnesses that may have had the opportunity to
hear any statements that complainant's supervisor made to complainant
on August 24, 1998, which may have been in violation of the April 23,
1998 settlement agreement.
Thereafter, the agency shall, within 30 calendar days of the date this
decision becomes final, issue a decision that determines whether the
agency breached the settlement agreement. A copy of the decision must
be submitted to the 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
July 12, 2001
__________________
Date