01A10689
10-03-2002
Boknamsik L. Horten, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Eastern Area Agency.
Boknamsik L. Horten v. United States Postal Service
01A10689
10/03/02
.
Boknamsik L. Horten,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Eastern Area
Agency.
Appeal No. 01A10689
Agency No. 4C-164-0032-99
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final decision.
The record reveals that during the relevant time, complainant was employed
as a Distribution Clerk, PS-05 at the agency's Processing and Distribution
Center, in Johnstown, Pennsylvania. Complainant sought EEO counseling and
subsequently filed a formal complaint on November 5, 1999, alleging that
she was discriminated against on the bases of race (Korean), national
origin (Korea), sex (female), color (yellow), disability (carpal tunnel
syndrome, cervical pain, anxiety), age (D.O.B. 4/28/47), and reprisal
for prior EEO activity when:
(1) on April 4, 1999, a 1994 EEO settlement was breached;
on September 3, 1999, she was notified that her June 22, 1999, mediation
settlement would not be honored; and
on or about September 30, 1999, her Distribution Clerk position was
posted, and thereafter, on November 5, 1999, she was informed that
failure to bid on a position would result in her being placed in a
residual vacant position.
The record establishes complainant contacted an agency EEO Counselor in
April of 1999 alleging, among other things, that a prior EEO complaint
entered into in 1994 was breached. The complaint underlying the
1994 settlement agreement is not part of the record, nor is it been
considered in the instant decision. On May 17, 1999, complainant
elected to mediate the issues raised with the EEO Counselor through
the agency's alternative dispute resolution program, and on June 22,
1999, complainant and the agency entered into a settlement agreement.
The settlement agreement required the agency to: (1) assist complainant
in submitting a request for a permanent reassignment to a light duty
position as soon as possible; (2) assist complainant in filling out a
CA-2 form and (3) grant complainant Sunday and Monday as her days off,
until such time as she bid off of her position at the agency's downtown
facility. This mediated settlement agreement caused the loss of a posted
assignment in the downtown facility. As a result, on September 3, 1999,
the agency informed complainant that the settlement agreement could not
be enforced because it would deprive the rights of senior employees in
her craft who may have wanted to bid on the preferred assignment.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision. Pursuant to 29 C.F.R. �
1614.107(a), the agency dismissed Issue #1, finding that there was no
settlement agreement between it and the complainant dated April 4,
1999.<1> Given that there was no settlement agreement, the agency
concluded that complainant failed to state a claim in relation to
this issue.
With respect to Issue #2, the agency found that complainant established
a prima facie case of discrimination in relation to this issue, but
that she failed to show that the reason it articulated for its action
was a pretext for discrimination. Specifically, the agency noted that
it honored the mediated settlement agreement until it became apparent
that it was in conflict with the Collective Bargaining Agreement (CBA).
Consistent with its past practice, the agency stated that it decided not
to break the CBA in order to resolve the EEO complaint that was filed by
complainant. Addressing Issue #3, the agency found that complainant failed
to establish a prima facie case of disability discrimination. In this
regard, the agency noted that in the instant complaint, complainant
identified her disabilities as depression and fatigue. According to
the agency, these medical conditions were unrelated to the physical
restrictions which it previously accommodated. With respect to this
issue, the agency also noted that complainant was unable to show that she
was treated differently than any similarly situated comparison employees.
On appeal, complainant recited the facts in her case and argued that the
agency breached the settlement agreement which was executed on June 22,
1999. In this regard, complainant argues that the Union was untimely
in challenging the June 22nd settlement agreement. Complainant also
states that if there was a dispute regarding the validity of the
June 22nd mediated agreement, the proper procedure to resolve this
dispute was for the Union to file a grievance pursuant to the CBA.
Complainant contends that the Union and the agency circumvented the CBA
in refusing to honor the June 22nd mediated agreement. In her appeal,
complainant also contends that she established a prima facie case on all
of the enumerated bases in her complaint and the agency used the wrong
case authority in finding that she did not establish a prima facie case.
Moreover, complainant argues that she showed pretext by establishing that
the agency's actions were not in conformance with the CBA. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
As a preliminary matter, we note that in her appeal, complainant did not
challenge the agency's dismissal of Issue #1 due to failure to state
a claim. Accordingly, the Commission will focus its analysis on the
correctness of the agency's actions in relation to Issues #2 and #3.<2>
Moreover, the Commission notes that pursuant to 29 C.F.R. � 1614.504, if
a complainant believes that the agency has failed to comply the terms of
a settlement agreement, the complainant should notify the EEO Director
in writing of the alleged breach. If the agency does not respond to
complainant's allegation of breach in writing, or if complainant is not
satisfied with the agency's attempt to resolve the matter, complainant
may appeal to the Commission. In this case, the complainant did not
raise her allegation of breach with the EEO Director as required by the
aforementioned regulations. Moreover, the agency proceeded to accept
her allegation of breach and addressed it in its FAD. Consequently, in
the interest of administrative economy, the Commission will exercise its
discretion to address complainant's allegation of breach of the June 22,
1999, settlement agreement in this decision.
In analyzing a disparate treatment claim under Title VII, the ADEA and
the Rehabilitation Act, where the agency denies that its decisions were
motivated by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman
v. Queens Village Committee for Mental Health for Jamaica Community
Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179
F.3d 929, 933-34 (D.C. Cir. 1999). Under this analysis, in order to
establish a prima facie case, complainant must demonstrate that: (1)
she is an "individual with a disability"; (2) she is "qualified" for the
position held or desired; (3) she was subjected to an adverse employment
action; and (4) the circumstances surrounding the adverse action give
rise to an inference of discrimination. Lawson v. CSX Transp., Inc.,
245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to
the agency to articulate a legitimate, non-discriminatory reason for the
adverse employment action. In order to satisfy her burden of proof,
complainant must then demonstrate by a preponderance of the evidence
that the agency's proffered reason is a pretext for discrimination. Id.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
a legitimate, nondiscriminatory reason for its actions. Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).
With respect to Issue #2, the Commission finds that the agency breached
the June 22, 1999 settlement agreement. 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, will be binding on both parties. The Commission
has held that a settlement agreement constitutes a contract between
the employee and the agency, to which ordinary rules of contract
construction apply. See Herrington v. Department of Defense, EEOC
Request No. 05960032 (December 9, 1996). The Commission has further held
that it is the intent of the parties as expressed in the contract, not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990).
In ascertaining the intent of the parties with regard to the terms of a
settlement agreement, the Commission has generally relied on the plain
meaning rule. See Hyon v. United States Postal Service, EEOC Request
No. 05910787 (December 2, 1991). This rule states that if the writing
appears to be plain and unambiguous on its face, its meaning must be
determined from the four corners of the instrument without resort to
extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building
Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984). In the instant case,
the settlement agreement provides that complainant would retain the
bid position �until what [sic] time, if any, she bids off her current
shift/position.� In his affidavit, the Acting Plant Manager at the time
this complaint arose, averred that although the language in the mediated
settlement agreement was vague, complainant clearly understood that as
an unencumbered employee, the assignment offered to her in the settlement
agreement would not be a permanent assignment, unless she was the senior
successful bidder once all of the bids for the Plant and the Main Post
Office were posted. Assuming arguendo, that the Acting Plant Manager
truthfully testified as to the understanding of the parties when they
entered into the mediated agreement, the fact that this understanding was
not reduced to writing makes it irrelevant to our determination of whether
or not the agency is in compliance with the terms of the agreement.
See Eggleston supra. Similarly, we note that even if the reason given
by the agency for breaching the agreement in its FAD is true, namely
that it conflicted with the CBA, this conflict does not negate the fact
that the agency breached the mediated agreement on September 3, 1999,
when it notified complainant that it would no longer honor the agreement.
Despite our finding that the agency breached the June 22, 1999 settlement
agreement, we find that there is no need for the agency to return
complainant to the informal complaint process for counseling, because
the sole surviving issue raised by complainant when she initially sought
counseling, namely, the health problems that she experienced working
on Tour I, is closely related to Issue #3 which was accepted and fully
investigated by the agency.
Responding to Issue #3, the Acting Plant Manager indicated that in April
of 1999, the agency introduced a new operating plan called Optima, which
was designed to get mail to the Letter Carriers by 7:00 a.m. During Phase
One of the Optima plan, the Acting Plant Manager stated that employees
associated with the processing of manual city mail were reassigned to
the Main Post Office. The Acting Plant Manager stated that all manual
City Clerks were given the opportunity to volunteer for this assignment.
When no one volunteered for the assignment, the Acting Plant Manager
stated that it became necessary to send the two junior manual City Clerks
into these assignments. Consequently, complainant and another employee
were reassigned from the Processing plant to the main Post Office in
Johnstown which was eight miles away. Moreover, a second Acting Plant
Manager, (hereafter Acting Plant Manager #2) averred that as Acting Plant
Manager, he had to inform complainant that she was required to bid on one
of two residual positions or she would be placed in one of the positions.
As a senior unencumbered employee, Acting Plant Manager #2 averred that
he was required to inform complainant of her options.
Based on the above discussion, we find that the agency has articulated
legitimate non-discriminatory reasons with respect to the challenged
personnel actions in Issue #3. Because the agency articulated legitimate
non-discriminatory reasons for the challenged personnel action,
complainant must prove that these reasons are pretextual and/or that the
agency was motivated by discriminatory animus. Upon reviewing the record
as a whole, the Commission finds that complainant failed to prove by a
preponderance of the evidence that the reasons articulated by the agency
for the challenged personnel actions were pretexts for discrimination.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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 (S0900)
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 (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
10/03/02
__________________
Date
1 Upon review of the record as a whole, we were unable to find a
settlement agreement dated April 4, 1999. However, it appears that
complainant argues that on April 4, 1999, an agreement executed in April
of 1994 was breached. On file, there is a letter of agreement between
the Union and the agency dated April 14, 1994. We will discuss the
significance of this April 14, 1994 letter in the Analysis section of
this decision.
2 Although we do not address the merits of Issue #1 in this decision,
we do note that the April 14, 1994 letter of agreement between the Union
and the Plant Manager of Johnstown Processing and Distribution Center,
which complainant seems to rely upon for her claim of breach, does not
include complainant's signature nor does it carry the provisions that
are typically included in a settlement agreement.