0120100975
06-04-2010
Carl Bryant, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Carl Bryant,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120100975
Agency No. 4F940014707
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 25, 2009, finding that it
was in compliance with the terms of the September 12, 2007 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.
Complainant contacted an EEO counselor alleging in part, that the
agency discriminatorily paid him incorrectly and submitted fraudulent
pay records. This was designated as agency case number 4F940014707.
The settlement agreement on EEO case number 4F940014707, provided,
in pertinent part, that:
(1) The agency agrees to reimburse the counselee for any and all
documented sick leave from January 1, 2007, to the present. Counselee
understands that some leave will remain as unscheduled absences.
(2) The counselee agrees to provide proper medical documentation
for his absences directly to his supervisor; such documentation does
not have to include any privileged private medical information.
(3) The agency agrees that the counselee will not be forced to do
any overtime and that it will follow his medical restrictions.
Complainant contacted an EEO counselor on October 16, 2007, and then
completed an intake form alleging that the agency breached the settlement
agreement. He cited comparative employees whose pay was not incorrect
or adjusted. The manager and supervisor of customer services then made
a joint statement that they granted all documented sick leave to date,
and complainant did not submit any additional documentation. This was
accompanied with documentation that in October 2007, the manager of
customer services approved adjustments for three prior pay periods to
change 24 of 88 hours of absence without leave (AWOL) to sick leave.
The record does not contain any documentation complainant submitted,
or information explaining how the agency arrived at its calculation.
The agency then made a final decision finding no breach. It referred to
the joint statement. On appeal, complainant contended that the agency
did not reimburse him for any and all documented sick leave from January
1, 2007, to present, that he submitted medical documentation for his
absences, but some was still listed as AWOL. He added that the agency
forced him to work overtime and violated his medical restrictions, but
gave no instances. Complainant asked that his complaint be reinstated.
In Bryant v. United States Postal Service, EEOC Appeal No. 0120082393
(September 9, 2009), the Commission ruled that it was unable to ascertain
whether the settlement agreement was breached because the agency failed to
include in the record evidence pertinent to complainant's breach claim.
It explained that it had no way to know what dates complainant was
owed leave reimbursement. It noted complainant's new contentions on
appeal about forced overtime, and work beyond his medical restrictions.
The Commission ordered the agency to supplement the record with affidavits
and other documentary evidence on whether it was in compliance with the
settlement agreement [terms 1 and 3], and to make a new determination
on whether it breached the settlement agreement.
On remand, the agency sent complainant a questionnaire asking:
* What is owed you for sick leave reimbursement, if any? Please provide
dates and an explanation, if known, of why you believe you have not been
reimbursed.
* When were you forced to do overtime? Please provide dates and
explanation as to why you feel you were forced to work overtime.
* When were your medical restrictions not followed? Please provide
dates and specify what medical restrictions were violated.
Thereafter, the agency issued a final decision finding no breach because
it had no evidence thereof. It explained that on remand complainant
replied o its questionnaire by orally telling the EEO office that the
agency should know what is owed to him, that he never responded in
writing, that he gave no documentation to support his claims of breach,
and that the management officials who were responsible were no longer
at complainant's station.
On appeal, complainant writes that he used sick leave for more than
80 days and a period of one month, was under the care of two doctors,
and the Department of Veterans Affairs submitted medical documentation
covering all this absence. He contends that he provided the agency
proper documentation. On being forced to work overtime and beyond his
medical restrictions, complainant refers to an EEO complaint he brought
prior to the settlement agreement.1 Complainant writes that the facts in
his past case "is as the present (...4F940014707)," that he was forced
to work overtime, and this is a breach. He asks that his breach claim
be investigated, that he be made whole, and that that case 4F940014707
be reopened.
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.
Our previous decision ordered the agency to supplement the record with
affidavits and other documentary evidence on whether it was in compliance
with the settlement agreement. On remand, after not getting a substantive
response from complainant to its questionnaire, the agency took no other
steps to supplement the record. It did not supplement it with information
on a daily basis on all the types of leave he took, both paid and unpaid,
from January 1, 2007 to the "present" (the present is September 12,
2007, the date of the settlement agreement); nor with documentation
or statements on how it arrived at its calculation of how much AWOL to
convert to sick leave during this period. The referenced joint statement
implied that complaint provided some documentation on the later matter,
but it is not in the record. There is no documentation showing that
complainant was actually reimbursed for any documented sick leave.
Because the agency did not comply with our prior order by supplementing
the record with information which would allow a determination on breach,
on remand the agency must give complainant the option to choose (1) that
the settlement agreement be rescinded and EEO case number 4F940014707
reinstated from the point processing ceased, or (2) ask that the agency
comply with term 1 of the settlement agreement. This will be set out
in the order below.
Complainant has not shown that the agency breached terms 2 and 3 of the
settlement agreement. He has generally alleged that he was forced to
work overtime and his medical restrictions were not followed, but even
after being asked by the agency, has not given any specific instances
of this occurring after the settlement agreement.
The agency's final decision is modified.
ORDER
Within 15 calendar days after this decision becomes final, by letter
the agency shall ask complainant to elect whether to (1) rescind the
settlement agreement and reinstate EEO case number 4F940014707 from the
point processing ceased, or (2) require that the agency implement term 1
of the settlement agreement. The letter shall instruct complainant that
he must make an election in writing within 15 calendar days of his receipt
of the letter. If complainant does not timely respond in writing, the
agency shall presume this to mean he chooses option 1. If complainant
chooses option 1, the agency shall rescind the settlement agreement,
reinstate EEO case number 4F940014707 from the point processing ceased,
and process it under 29 C.F.R. Part 1614.
If complainant chooses option 2, the agency shall do the following:
supplement the record with an absence analysis done on a daily basis,
backed up with supporting documentation, of all types of leave complainant
took, both paid and unpaid, from January 1, 2007 to September 12, 2007;
documentation or statements on how the agency previously arrived at
its calculation of how much AWOL it converted to sick leave during this
period, and proof that it converted the leave; documentation complainant
previously submitted on this; and documentation on what documented
sick leave complainant was reimbursed for, if any, during this period.
The agency shall then provide complainant a copy of this information,
and give him an opportunity to identify what additional leave should
be designated as sick leave, and why. If asked by complainant, the
agency shall assist him in securing documentation on sick leave during
the above period, such as aiding him in completing medical release
form(s) and submitting them to his health care providers. Thereafter,
the agency shall implement term 1 of the settlement agreement, which
shall include reimbursing complainant for any and all documented sick
leave from January 1, 2007 to September 12, 2007, to the extent it has
not done so already, and supplement the record with evidence thereof.
The agency shall supplement the record with information and documentation
on how it arrived at its calculations, and explain the absence of any
pertinent documentation. The agency shall then issue a new final agency
decision on whether it complied with term 1 of the settlement agreement,
explaining how it arrived at its decision. The agency shall complete
the actions required to implement option 2 within 120 calendar days
after this decision becomes final.
A copy of the election letter to complainant, complainant's reply, and
other documentation showing compliance with the above order must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 4, 2010
__________________
Date
1 The agency complaint number is 4F940013405. In Bryant v. United
States Postal Service, EEOC Appeal No. 0120070974 (October 10, 2007),
the Commission dismissed complainant's appeal from a final agency decision
on this complaint because the appeal was untimely filed.
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0120100975
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100975