Sonia Drouillard, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 15, 2001
05990346_r (E.E.O.C. Jun. 15, 2001)

05990346_r

06-15-2001

Sonia Drouillard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sonia Drouillard v. U.S. Postal Service

05990346

June 15, 2001

.

Sonia Drouillard,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Request No. 05990346

Appeal No. 01974336

Agency No. 5-P-1329-92

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Sonia

Drouillard v. U.S. Postal Service, EEOC Appeal No. 01974336 (January

7, 1999). EEOC Regulations provide that the Commission may, in its

discretion, reconsider any previous Commission decision where the

requesting party demonstrates 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.

See 29 C.F.R. � 1614.405(b).

Complainant claims that the agency breached the April 28, 1993 settlement

agreement executed by the parties when it failed to purge her personnel

record of all disciplinary actions as specified in provision 2 of

the agreement.<1> As a remedy, complainant asks that her complaint

be reinstated and that she be provided with a hearing by an EEOC

Administrative Judge.

In its April 11, 1997 decision, the agency acknowledged that it had

failed to comply with provision 2, but claimed that this was due to an

administrative oversight. However, the agency additionally

stated that complainant's record had recently been purged, and that it

was now in compliance with the settlement agreement. Complainant appealed

this determination to the Commission.

In the previous decision, the Commission vacated the agency's decision,

and ordered the agency to purge complainant's official personnel record,

or if it had already done so, to produce verification that it had removed

the disciplinary actions from complainant's official personnel record.

Additionally, the Commission specifically declined to reinstate the

underlying complaint and/or order an immediate hearing, finding that

complainant had failed to set forth sufficient justification to warrant

this remedy.

On January 7, 1999, in conjunction with issuing the previous decision,

the Commission docketed the case as EEOC Compliance No. 06990472 in order

to implement the Commission's ORDER in this case. However, on January

29, 1999, complainant filed the instant request for reconsideration,

and the Commission closed EEOC Compliance No. 06990472 on February 24,

1999, prior to receiving the documentation requested in the ORDER.

In her request, complainant argues that the agency and the Commission

acknowledge that the agency failed to comply with provision 2 of the

settlement agreement, and that the agency's subsequent compliance with

this provision should not defeat her right to complaint reinstatement

and a hearing. In response, the agency argues that complainant's

request for reconsideration does not satisfy the regulatory criteria,

and asks that the Commission deny her request.

As noted in the previous decision, under 29 C.F.R. � 1614.504(c),

the Commission has the authority to order the agency to comply with the

settlement agreement, or in the alternative, to reinstate the complaint.

In this case, provision 2 of the settlement agreement states only that

complainant's personnel record is to be purged of all disciplinary

actions, but no time period for doing so is set forth. Moreover,

while the agency did not provide documentary verification, it avows that

complainant's file was purged once she alerted them to this omission.

In this regard, we note that complainant does not claim that the agency

failed to purge her personnel file after she filed the breach claim,

but instead argues that the prior noncompliance should constitute

technically sufficient grounds to reinstate her complaint and afford

her an immediate hearing.

Notwithstanding complainant's arguments to the contrary, we find that

the Commission properly exercised its authority in the previous decision

by ordering the agency to comply with the settlement agreement rather

than reinstating the complaint and ordering a hearing.

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it

is the decision of the Commission to deny the request. The decision

in EEOC Appeal No. 01974336 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request for reconsideration.

ORDER

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

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

Commission, with evidence that complainant's official personnel file has

been �purged of all disciplinary actions,� in accordance with provision

(2) of the settlement agreement. 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 complainant'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 complainant's official

personnel file and provide a statement under oath or affirmation that

all references to disciplinary actions against complainant by the agency,

including the May 5, 1993 memorandum, have been purged from complainant's

official personnel file.

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 (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.

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

June 15, 2001

__________________

Date

1Provision 2 states that: �[Complainant's] Official Personnel Folder

(OPF) shall be purged of all disciplinary actions.�