01A34402_r
02-19-2004
Jennie L. Fluellen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jennie L. Fluellen v. United States Postal Service
01A34402
February 19, 2004
.
Jennie L. Fluellen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34402
Agency No. 1C-191-0022-01
DECISION
Complainant appealed to this Commission from an agency's June 27, 2003
final decision finding no breach of the November 30, 2000 settlement
agreement into which the parties entered. The settlement agreement
provided, in pertinent part, that:
Provided [complainant] passes the fitness for duty exam, the following
will be provided:
An assignment on the FSM 1000 with the non-scheduled days and work hours
reassigned to [complainant] in June 2000. . . . Arrangements will be
made for training in typing to prepare [complainant] for another [agency]
assignment. A comfortable work environment free of stressors will be
insured by [complainant's manager] and her supervisors for [complainant]
in the FSM operation.
On September 6, 2002, complainant contacted the agency's EEO office and
alleged breach of the settlement agreement. Complainant contended that
her manager broke the agreement, and acted in a sexist, degrading manner
towards her. Complainant provided more details of her breach complaint in
an Office of Workers' Compensation Program claim. Therein, complainant
contended that she was entitled to remain in the FSM 1000 assignment,
and was verbally harassed in front of her coworkers when she challenged
her manager's decision to move her to a different assignment.
In its June 27, 2003 decision, the agency concluded that it had not
breached the settlement agreement. Specifically, the agency noted
that complainant's FSM 1000 assignment was intended to be a temporary
assignment, with an expectation that she would transition to a different
position once she received the training outlined in the settlement.
The manager explained that he was under pressure from the union to place
a senior bidder in the FSM 1000 assignment, and relayed the situation
to complainant in a �matter of fact� conversation with complainant.
The agency also notes that the reason behind the �comfortable work
environment� provision in the settlement agreement no longer exists,
because the supervisors complainant believed were harassing her at the
time no longer work in the operation.
On appeal, complainant argues that the settlement agreement provided
her with a permanent assignment to the FSM 1000 that could not be taken
away from her through the bid process. When complainant challenged her
reassignment with her manager, the manager, according to complainant,
told her that no one wanted her to work in their unit, the agency
physicians were against complainant's return to work, complainant would
not be employed if not for the manager, and complainant should quit if
she did not like the reassignment to the AFSM 100 assignment.
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).
The November 30, 2000 settlement agreement does not provide for
complainant to have a permanent assignment to the FSM 1000. To the
contrary, the plain language of the settlement provides for complainant
to receive training to prepare complainant for other assignments. This
provision clearly contemplates complainant being given other assignments.
Further, the record reveals that complainant has received training, and
was allowed to remain in the FSM 1000 assignment for the last two years.
Accordingly, the Commission finds that the agency has complied with
the agreement.
With respect to the harassment complainant claims to have suffered,
this matter involves a subsequent action that complainant believes was
discriminatory. Such subsequent acts must be processed as separate
complaints of discrimination, not as claims of settlement breach.
29 C.F.R. � 1614.504(c). If complainant wishes to pursue the treatment
she received from her manager on September 3, 2002 as a separate complaint
of discrimination, she must contact an EEO Counselor within fifteen (15)
days of the date she receives this decision. If complainant makes such
contact with an EEO Counselor, the date she first raised the harassment
issue in her breach claim shall be considered the date complainant
first contacted an EEO Counselor, for timeliness purposes. Cf. Qatsha
v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998).
CONCLUSION
Accordingly, the agency's decision finding no breach of the settlement
agreement is AFFIRMED.
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
February 19, 2004
__________________
Date