01a53583
05-02-2006
Maria E. Chacon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Maria E. Chacon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53583
Agency No. 4F-900-0289-04
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 7, 2005, finding that it was in
compliance with the terms of the September 23, 2004 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) Complainant will put OPTs [requests] in for open routes, and
Management will award the OPTs by seniority.
(2) Management will schedule complainant's time for the next work
day before she leaves from work. Complainant will bring to the attention
of the Supervisor if the time is not written.
By letter to the agency dated December 9, 2004, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that on occasions she has requested OPTs for routes when she knew
that the carriers assigned those routes were going to be on vacation.
She was denied those OPTs. Further, she noticed that she was not
scheduled to report to work on two days in violation of provision (2).
In its April 7, 2005 FAD, the agency concluded that it did not breach
the settlement agreement. Specifically, the agency indicated that the
Manager asked complainant and her representative to provide him with a
list of OPT assignments she requested. Since complainant did not comply
with the Manager's request, the agency found that it had not breached
the settlement agreement.
Complainant appealed asserting that she has requested OPTs and was not
awarded them despite having the top seniority. Further, she stated
that the agency has not placed her on the work schedule as agreed upon
in the settlement agreement.
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).
Upon review, the agency has not addressed complainant's claims of breach
of the settlement agreement. We note that the agency did not investigate
whether or not it had breached the settlement agreement. The Commission
finds the record insufficient in this matter for a determination as to
whether the agency breached the settlement agreement. Accordingly,
the Commission will set aside the agency's final decision and will
direct the agency to conduct a supplemental investigation pursuant to the
Commission's authority under 29 C.F.R. � 1614.504(c). Although generally
the complainant has the burden of showing the agency was not in compliance
with the settlement agreement,1 we find, in this case, that the agency
has not met its burden of providing sufficient evidence in support of
the FAD. Henry v. United States Postal Serv., EEOC Request No. 05940897
(May 10, 1995), citing Gens v. Department of Defense, Defense Logistics
Agency, EEOC Request No. 05910837 (January 31, 1992). In the case at
hand, there is no information from the Supervisor regarding complainant's
requests for OPTs which were denied. In addition there is no explanation
for Management's failure, on several occasions, to place complainant on
the calendar for the next work day before complainant left for the day.
CONCLUSION
Accordingly, the Commission hereby VACATES the FAD and REMANDS this matter
for further processing consistent with this decision and applicable
regulations. The agency shall comply with the Commission's ORDER set
forth below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall obtain statements under oath or affirmation
from Management regarding the denials of complainant's OPT requests and
the failure to place her on the calendar on two occasions.
2. The agency shall provide complainant, and the Commission, with
a true copy of the attestation referenced in item (1) of this ORDER.
3. Thereafter, the agency shall issue a new final decision,
with appeal rights to the Commission, indicating whether the agency
was in compliance with the settlement agreement, and shall provide true
copies of any and all evidence the agency has relied upon to support its
determination, if the agency determines it complied with the SA. If the
agency finds it was not in compliance with the settlement agreement,
it shall achieve compliance in accordance, pursuant to 29 C.F.R. �
1614.504(c), and provide complainant and the Commission with appropriate
and authentic evidence of compliance.
4. The supplemental investigation and issuance of the final
decision, including evidence of compliance with settlement agreement,
must be completed within thirty (30) calendar days of the date the
Commission's decision becomes final. A copy of the final decision must
be submitted to the Compliance Officer, as provided in the statement
entitled "Implementation of the Commission's Decision."
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
May 2, 2006
__________________
Date
1 See Moore v. Department of the Navy, EEOC Request No. 05930694 (April 7,
1994).
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01A53583
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A53583