01A13500_r
10-04-2001
Cindy D. Henry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cindy D. Henry v. United States Postal Service
01A13500
October 4, 2001
.
Cindy D. Henry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13500
Agency No. 4-H-335-0266-00
DECISION
Complainant appealed to this Commission from the agency's final decision,
dated May 1, 2001, finding no breach of the August 23, 2000 settlement
agreement into which the parties entered. The settlement agreement
provided, in pertinent part, that:
[Management] agrees to reinstate [complainant] as a [Temporary Employee
(T.E.)] if such position becomes available.
In the event that a T.E. position is not available, [management] and
[complainant] agree that reinstatement as a Casual Employee [(C.E.)] will
occur, if available, with [complainant] being in line for a T.E. position
when available during the course of her employment as a [C.E.].
On March 9, 2001, complainant contacted the agency to allege breach of the
settlement agreement. Specifically, complainant argued that she had not
been given a T.E. position, although other C.E.'s received such posts.
According to complainant, management informed her that T.E.'s would not
be hired at the present time, due to advancements in automation.
In its final decision, the agency notes that, prior to the signing of
the settlement agreement, it began to process the paperwork of several
employees requesting T.E. positions. The agency admits that the paperwork
was not �signed� until September 8 and 11, 2000. The agency also found
that veterans received priority placement for T.E. vacancies, and that
complainant, who is not a veteran, was not entitled to priority for a
T.E. position under the settlement agreement. The agency also noted
that all other T.E. vacancies (over ten) came from �Central Forwarding
Systems (CFS).� According to the agency, everyone who responded to a
letter sent to all C.E.'s and passed a test received an opportunity to
work as a T.E. in CFS.
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. 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 intent of the parties as expressed in the contract,
not some unexpressed intention, 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 generally
has 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 no contingencies
for complainant's placement in an available T.E. position such
as veteran's status, complainant's response to letters requesting
applications, or the completion of tests. It also does not restrict
complainant to receiving T.E. positions in a particular department, nor
exclude T.E. positions in CFS from consideration. If the agency wished
to place such restrictions on its duty to place complainant in available
T.E. positions, it should have negotiated to have such written into
the settlement agreement. The agency failed to place complainant in a
T.E. position in her current location, or in CFS. Complainant's failure
to respond to letters, take tests, etc. does not justify its failure
to provide her with one of these available positions. Accordingly,
the Commission finds that the agency breached the settlement agreement.
When finding breach of a settlement agreement, the Commission may require
the agency to reinstate the complaint, or specifically enforce the terms
of the settlement agreement. Complainant requests that the agency hire
her as a T.E. Given this request, and other circumstances surrounding
this case, the Commission finds that the agency should specifically
enforce the terms of the settlement agreement.
CONCLUSION
Accordingly, the agency's decision is REVERSED, and the matter is REMANDED
for specific implementation of the agreement's terms.
ORDER
The agency is ordered to reinstate complainant into an available
T.E. position consistent with the terms of the settlement agreement.
It must take this action within thirty (30) calendar days of the date
this decision becomes final. The agency must provide the Compliance
Officer with the notice informing complainant of her conversion to an
available T.E. position as indicated 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
October 4, 2001
__________________
Date