01A12047_r
07-26-2001
Marvin J. Vigil, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marvin J. Vigil v. United States Postal Service
01A12047
July 26, 2001
.
Marvin J. Vigil,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12047
Agency No. 4E-870-0060-00
DECISION
The record indicates that complainant appeals from the agency's decision
not to reinstate his complaint of unlawful employment discrimination that
the parties had settled. See 29 C.F.R. � 1614.504. The record indicates
that on October 19, 2000, the parties entered into a settlement agreement
resolving complainant's complaint. The settlement agreement provided,
in pertinent part, that:
5. Complainant will provide his manager past dates and receipts from
prior doctor/medical appointments. If taken during regular work tour,
complainant will be reimbursed for time taken without pay or leave
if it is an �approved� injury claim. If not �approved� by OWCP, then
complainant needs to submit a CA-7. Dates will be from September 1999
to current.
6. Complainant's manager agrees to pay complainant a lump sum of $600.00
less appropriate deductions.
On December 11, 2000, complainant alleged that the agency breached the
settlement agreement when he did not receive his leave reimbursement
and $600.00 under items 5 and 6 thereof. On January 12, 2001, the
agency responded that complainant, through his manager, was provided
with the required documentation needed to file a CA-7 for his leave
reimbursement, and it also submitted a PS.2240 for $600.00 payment.
On appeal, complainant maintains that although he provided his manager
with the dates and receipts of his prior leave, which was all approved
by OWCP, he did not receive the reimbursement. He also maintains that
he has not received $600.00. There is no evidence in the record to
show that whether complainant was reimbursed for his leave, which was
previously approved by OWCP, under item 5 of the settlement agreement.
Furthermore, there is no evidence in the record to show that complainant
actually received $600.00 less appropriate deduction, despite the
agency's processing thereof, under item 6 of the settlement agreement.
Based on the foregoing, the Commission cannot determine whether the
agency breached the settlement agreement.
Accordingly, the agency's decision not to reinstate complainant's
complaint is VACATED and the matter is REMANDED back to the agency's
for further processing in accordance with the Order below.
ORDER
The agency shall provide in the record evidence which demonstrates that
complainant received reimbursement for time taken without pay or leave
which was an approved injury claim and $600.00 less appropriate deduction
under items 5 and 6 of the October 19, 2000 settlement agreement.
Based on the foregoing information, the agency, within thirty (30)
calendar days of the date this decision becomes final, shall issue a
decision on the breach claim and/or notify complainant that the agency
is reinstating his complaint for further processing from the point that
processing ceased.
A copy of the agency's final decision and/or the agency's letter of
complaint reinstatement must be sent 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 (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
July 26, 2001
__________________
Date