01A30300_r
04-24-2003
Donna B. Russell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donna B. Russell v. United States Postal Service
01A30300
April 24, 2003
.
Donna B. Russell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30300
Agency No. 1A-113-0005-02
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated September 6, 2002, finding that it was in
compliance with the terms of the January 5, 2000 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) Management agrees to give [complainant] a regular assignment beginning
Saturday, January 8, 2000. The assignment will be on the Flat Sorter
with hours from 5PM - 1:30AM.
(2) If [complainant] has to be put on another assignment the MDO will
notify her and tell her the reason for doing so.
(3) During emergency situations [complainant] understands she might have
to work beyond 1:30AM.
(4) All parties agree that lunch and break, at times, will be flexible
and between the supervisors.
All parties agree to handle all situations in a professional and
respectful manner.
By letter to the agency dated August 27, 2002, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate her complaint. Specifically, complainant alleged
that the agency changed complainant's duty hours to 11:00 pm until 7:00
am, beginning September 7, 2002.
In its September 6, 2002 decision, the agency concluded that while
complainant had been assigned the 5:00 pm to 1:30 am tour following the
execution of the settlement agreement, the agency was now undergoing a
transformation and that complainant's hours were being changed due to
business-related considerations and realignment of the supervisory staff.
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).
In the instant case, we find that complainant was initially assigned
to the duty hours and regular assignment as agreed in the January 5,
2000 settlement agreement. However, we find the record inadequate to
corroborate the agency's conclusions that operational needs required
changes that impacted complainant's regular assignment and duty hours
as of September 7, 2002. No statement from an appropriate agency
official or officials or other documentation confirms the elimination
of complainant's regular assignment or the need for changing her tour
of duty. On the contrary, complainant disputes the reasons cited by
the agency for changing her duty hours and supervisory assignment.
For instance, complainant claims the flat sorter operation (FSM 1000)
was never eliminated. Complainant further states that other supervisors
were not excessed from Tour 3, but actually volunteered to change to
other tours and operations. We find, under the circumstances, that we
cannot determine if breach of the settlement agreement occurred.
We therefore VACATE the agency's finding that no breach of the settlement
agreement occurred. We REMAND the settled matter to the agency for
supplementation of the record as directed herein.
ORDER
The agency shall supplement the record with the following evidence
in order to show whether the agency has complied with the settlement
agreement:
Affidavits or declarations of appropriate agency official or officials
describing to what position complainant was assigned and her duty hours
following execution of the settlement agreement on January 5, 2000,
and whether the agency complied with provision (1) thereof.
Affidavits of appropriate agency officials or other documentation
describing any subsequent agency realignment or reorganization (including
the effective dates) that occurred, which required changing complainant's
supervisory assignment or duty hours thereafter, including whether other
supervisory employees were similarly impacted or volunteered to change
to other tours/operations, and documenting all efforts made to continue
to abide by provision (1) of the January 5, 2000 settlement agreement.
Affidavits or declarations of appropriate agency officials describing the
agency's compliance with provision (2) of the January 5, 2000 settlement
agreement.
Within 30 days of the date this decision becomes final the agency shall
issue a new decision determining whether the agency breached provisions
(1) and (2) of the settlement agreement. A copy of the agency's new
decision must be sent to the Compliance Officer referenced herein.
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 24, 2003
__________________
Date