Jennie L. Fluellen, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 19, 2004
01A34402_r (E.E.O.C. Feb. 19, 2004)

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