Boknamsik L. Horten, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Eastern Area Agency.

Equal Employment Opportunity CommissionOct 3, 2002
01A10689 (E.E.O.C. Oct. 3, 2002)

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.