01a30842_r
04-26-2004
Myra J. Bethel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Myra J. Bethel v. United States Postal Service
01A30842
April 26, 2004
.
Myra J. Bethel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30842
Agency Nos. 4-H-330-0412-02; 4-H-330-0169-02; 4-H-330-0309-01
DECISION
On November 12, 2002, Myra J. Bethel (hereinafter referred to as
complainant) filed an appeal with this Commission, concerning: (1) an
alleged breach of a settlement agreement entered into with the agency
on February 27, 2002, with respect to Agency No. 4-H-330-0169-02;
(2) her EEO complaint, Agency No. 4-H-330-0412-02, which alleged
discrimination based on the bases of race, color, disability and in
reprisal for prior protected activity, in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.; and, (3) her EEO complaint,
Agency No. 4-H-330-0309-01, which alleged discrimination based on race,
color, sex, national origin and age, in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
This appeal addresses two separate final agency decisions: an October
9, 2002 final decision on the issue of settlement breach (Agency
No. 4-H-330-0169-02); and a separate October 9, 2002 final decision
dismissing Agency No. 4-H-330-0412-02. The record reflects that the
agency has not yet issued a final decision on Agency No. 4-H-330-0309-01.
Agency No. 4-H-330-0169-02
On February 27, 2002, complainant and the agency entered into a settlement
agreement providing, in pertinent part, that:
management agrees to complete all the necessary paperwork concerning
[complainant's] request for a transfer within 1 (one) week from 2/27/02.
By letter to the agency dated March 15, 2002, complainant alleged that
the agency breached the settlement agreement . Specifically, complainant
claimed that a transfer was not implemented, and that she was told by
an agency manager that no one will accept her transfer because of an
elbow injury.
In its October 9, 2002 decision , the agency determined that it complied
with provision (2), by processing the paperwork and sending it to a
committee for a determination on the transfer request.
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
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 Commission determines that nothing in provision (2) of the instant
settlement agreement guarantees that complainant will be transferred.
Instead, provision (2) merely requires that the necessary paperwork for
the transfer will be completed within one week of February 27, 2002.
The agency complied with the terms of the settlement agreement when
it timely completed the necessary paperwork and submitted it for
review to a committee for a final determination on the transfer request.
Accordingly, we find that the agency properly concluded that no breach
of the settlement agreement occurred, and the agency's decision finding
no breach is AFFIRMED.
Agency No. 4-H-330-0412-02
On August 5, 2002, complainant contacted the EEO Office claiming that she
was discriminated against on the bases of race, color, disability and
in reprisal for prior protected activity. Informal efforts to resolve
complainant's concerns were unsuccessful. On September 10, 2002,
complainant filed a complaint. Subsequently, on September 25, 2002,
complainant was issued a letter of removal effective November 5, 2002.
In its final decision dated October 9, 2002, the agency identified the
matter raised in complainant's formal complaint as whether complainant
was discriminated against when on September 25, 2002, she was issued a
notice of removal effective November 5, 2002.
The agency dismissed the complaint on the grounds that it concerned a
proposed action. The agency determined that complainant's termination
was not effectuated at the time she filed her complaint. In a footnote
in its final decision, the agency found that complainant abandoned
some discrimination claims when she failed to re-allege them in her
formal complaint. The agency provided no specific identification of
the purportedly abandoned claims.
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that an agency shall
dismiss a complaint that alleges that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, is
discriminatory.
The Commission finds that the September 25, 2002 letter to complainant
was not a proposal or preliminary step. The September 25, 2002 letter
informed complainant that she would be removed from employment beginning
November 5, 2002. Therefore, we find that dismissal of the complaint
pursuant to � 1614.107(a)(5) was improper.
The Commission also determines that the matters raised in the instant
complaint was not confined solely to the letter of removal, as determined
by the agency in its final decision. A review of the formal complaint
reflect that complainant claimed that she had been discriminated against
when (a) on July 25, 2002, she was directed to deliver Express Mail
that management was aware could not be delivered in the time allotted;
(b) she had been paid incorrectly (ongoing). Specifically, complainant
stated in her complaint that: �monies are also taken out of my pocket
for no reason.� The Commission noted that these are the same issues
raised during the EEO Counseling stage. Therefore, we find they were
not abandoned.
In summary, the Commission determines that the instant complaint is
comprised of the claim that complainant was issued a notice of removal;
that she was improperly directed to deliver Express Mail on June 25,
2002, although agency management was aware that it could not be delivered
in the time allotted; and that she has been paid incorrectly in an
ongoing fashion. Accordingly, the agency's final decision dismissing
the complaint for being a proposed action is REVERSED and complainant's
complaint as defined herein is REMANDED for further processing.
Agency No. 4-H-330-0309-01
On April 2, 2001, complainant contacted the EEO Office claiming that
she was discriminated against on the bases of race, color, national
origin and age. Informal efforts to resolve complainant's concerns
were unsuccessful. On May 3, 2001, complainant filed a formal complaint
claiming that on March 12, 2001, she was advised that her route was
cut and management failed to pay her for work previously performed.
By letter dated June 15, 2001, the agency informed complainant that the
claim relating to her route being cut and not being paid for previously
performed work in March 2001, was accepted for investigation.
On November 12, 2002, complainant filed the instant appeal with this
Commission regarding the above complaint. However, we find this appeal
premature because the agency has not yet issued a final decision on this
complaint. Therefore, we will not address Agency No. 4-H-330-0309-01
further herein.
Accordingly, the agency's decision finding no breach of the settlement
agreement that is the subject of Agency No. 4-H-330-0169-02, is
AFFIRMED. The agency's decision dismissing Agency No. 4-H-330-0412-02
is REVERSED and the complaint as defined herein is REMANDED to the agency
for further processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in Agency
No. 4-H-330-0412-02 in accordance with 29 C.F.R. � 1614.108. The agency
shall acknowledge to the complainant that it has received the remanded
claims within thirty (30) calendar days of the date this decision
becomes final. The agency shall issue to complainant a copy of the
investigative file and also shall notify complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this
decision becomes final, unless the matter is otherwise resolved prior
to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
April 26, 2004
__________________
Date