01a60668_r
08-31-2005
Brenda Conde, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brenda Conde v. United States Postal Service
01A60668
April 14, 2006
.
Brenda Conde,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60668
Agency No. 1F-904-0059-05
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 11, 2005, regarding whether the
agency breached the terms of an August 18, 2005 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The August 18, 2005 settlement agreement provided, in pertinent part,
that:
1. Reinstate [complainant] to the same status as she would have been
in had this action not occurred.
2. All parties agree that no back pay will be awarded to [complainant].
3. This agreement is effective as soon as administratively possible,
but no later than August 26, 2005.
The settlement agreement also provided that:
If the terms of this agreement are determined to violate a provision of
the applicable collective bargaining agreement, this agreement will be
null and void. In the event that this agreement becomes null and void,
the complainant will be allowed to either renegotiate the terms of this
agreement to be in compliance with the collective bargaining agreement
or to reinstate his or her complaint.
The record reflects that the Manager, Human Resources (HR1) sent a
letter to complainant dated August 26, 2005. Therein, HR1 stated that
provision (1) of the settlement agreement violated Article 12.1D of the
collective bargaining agreement (CBA). HR1 asserted that Article 12.1D
provides �[w]hen an employee who has separated from the Postal Service
for any reason is re-hired, the employee shall begin a new probationary
period.� In addition, HR1 informed complainant that �[Form 50s] must
be effective the first day of a pay period. The no-later-than date of
August 26, 2005 [identified in provision 3 of the settlement agreement]
is in the middle of a pay period. The earliest possible effective
date is September 3, 2005.� Furthermore, HR1 notified complainant that
�the earliest effective date that you can be re-hired is September 3,
2005, and in accordance with the [CBA], you will be required to serve
a new probationary period....you have the option of renegotiating this
agreement or reinstating your complaint.�
By letter to the agency dated August 30, 2005, complainant claimed breach.
Specifically, complainant alleged that she received a letter from HR1
informing her that she would need to complete another probationary
period.
In its October 11, 2005 FAD, the agency concluded that the August 18,
2005 settlement agreement was unenforceable because it is in violation of
the CBA. The agency also asserted that complainant agreed to renegotiate
the settlement agreement and signed a statement on August 31, 2005,
that she agreed to begin a new probationary period.<1>
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, shall 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 O 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 August 18, 2005 settlement agreement contains
a provision that would nullify and void the settlement agreement
when the terms of the settlement agreement are determined to violate
provisions of the CBA. In its final decision, the agency determined
that the August 18, 2005 settlement agreement violated the collective
bargaining agreement and maintained that complainant signed a statement
renegotiating her settlement agreement based on this violation of the CBA.
Upon review of the record, the Commission is unable to ascertain whether
the August 18, 2005 settlement agreement violates the CBA. The record
contains memoranda from HR1 dated August 26, 2005, and September 16, 2005.
Therein, HR1 asserts that the settlement agreement violates Article 12.1D
of the collective bargaining agreement. In the memoranda, HR1 also quotes
language that is purportedly from Article 12.1D of the CBA. However, the
record does not contain a copy of the applicable provision of the CBA.
Accordingly, the agency's final decision is VACATED and this matter is
REMANDED to the agency for further processing in accordance with the
ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with the relevant portions of
the collective bargaining agreement that would purportedly be violated
by the implementation of the August 18, 2005 settlement agreement.
The agency shall also supplement the record with an explanation in the
form of affidavits from the appropriate agency officials explaining how
the collective bargaining agreement would be violated by the agency's
compliance with the settlement agreement. Thereafter, the agency shall
issue a new decision, with appeal rights to the Commission, determining
whether the settlement agreement has been breached or is void because it
violates the collective bargaining agreement. The supplementation of
the record and the issuance of a new decision must be completed within
thirty (30) calendar days form the date this decision becomes final.
A copy of the supporting documentation and the new decision 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
April 14 ,2006
__________________
Date
1The Commission notes that the record contains a document signed
by complainant and dated August 31, 2005. The document provides,
in pertinent part, that �I...have been advised that terms of my EEO
Settlement Agreement dated August 18, 2005, violate provisions of the
[CBA]...I've also been advised that reinstatement or re-hire [Form 50s]
must be effective on the first day of a pay period. I have been advised
of my right to renegotiate the terms of this agreement to be in compliance
with the CBA or to reinstate my complaint.� The document also contains
a box that is checked and contains complainant's initials. The checked
box on the document provides �I agree to renegotiate the terms of this
agreement to be in compliance with the CBA. I understand that I will
be re-hired effective September 3, 2005, and that I am required to serve
a new probationary period.�