Sonia Drouillard, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 7, 1999
01974336 (E.E.O.C. Jan. 7, 1999)

01974336

01-07-1999

Sonia Drouillard, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Sonia Drouillard v. United States Postal Service

01974336

January 7, 1999

Sonia Drouillard, )

Appellant, )

)

v. ) Appeal No. 01974336

) Agency No. 5-P-1329-92

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

The Commission sets aside the agency's April 11, 1997 final decision

(FAD) declaring that the agency had not breached an April 26, 1993

settlement agreement (SA, or the agreement) with appellant. We find

the agency has admitted in the FAD that it had not purged appellant's

"prior discipline," as required by provision (2), in pertinent part,

in the SA. The FAD attributed its noncompliance with provision (2),

the only portion of the SA appellant had alleged the agency breached,

to "an administrative oversight."

The agency has represented in the FAD that the "oversight has now been

corrected and the Official Personnel Folder (OPF) has been purged of

all corrective action." Nonetheless, appellant, who claims she learned

of the breach when she reviewed her OPF in 1996, is seeking to have

her 1992 formal EEO complaint reinstated. We decline to issue such an

order; instead, in accordance with 29 C.F.R. �1614.504(c), we direct the

agency to comply with provision (2), if it has not already done so, and,

in the event the agency has effected compliance, as it has represented,

to provide evidence of compliance. Appellant has offered no argument in

her May 2, 1997 appeal, by her representative, to persuade us to reach

a contrary conclusion.

The FAD is hereby VACATED, and the agency is directed to comply with

the Commission's ORDER set forth below.

ORDER

Within thirty (30) calendar days from the date this decision becomes

final, the agency shall provide appellant, her representative, and

the Commission, with evidence that appellant's OPF has been "purged of

all disciplinary actions," in accordance with provision (2) of the SA.

Included, but not limited to, the purging of all disciplinary actions

shall be the May 5, 1993 memorandum by the agency's Labor Relations

Specialist, Customer Service, which memorandum formed the basis

of appellant's allegation of noncompliance in the present matter.

Proof of compliance with the Commission's ORDER shall include, but need

not be limited to a statement, confirming agency compliance, under oath

or affirmation, by the Custodian of the Official Personnel Folder,

Personnel Office, Santa Ana District, City of Industry, California.

The agency may designate another official to review appellant's OPF

and provide a statement under oath or affirmation that all references

to disciplinary actions against appellant by the agency, including the

May 5, 1993 memorandum, have been purged from appellant's OPF.

Proof of compliance with the Commission's ORDER must be submitted to

the Commission's Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request

containing arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

January 7, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations