01982389
04-30-1999
Ronella S. Grisham, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ronella S. Grisham v. United States Postal Service
01982389
April 30, 1999
Ronella S. Grisham, )
Appellant, )
)
v. ) Appeal No. 01982389
) Agency No. 4E-852-1072-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On February 5, 1998, appellant filed a timely appeal from a January 20,
1998 final agency decision wherein the agency determined it was not in
breach of the settlement agreement. See 29 C.F.R. ��1614.504, .402(a).
In exchange for withdrawing three complaints, appellant and the agency
entered into a settlement agreement on February 12, 1997, which provided,
in relevant part, as follows:
1. Work hours will be changed to 7:30AM-4:00PM Tues-Friday and
6:00AM-2:30PM on Sat. SDO's are Sun/Mon.
2. [Person A] will no longer be involved in supervising the complainant.
The complainant will report to the [Manager] Customer Services when her
regular supervisor is not available.
3. Complainant will be provided a chair with arm rest.
The agreement was signed by appellant and Person B, then an agency
Manager of Customer Services.
In letters dated December 30, 1997, and January 6, 1998, appellant
notified the agency that it was in breach of paragraph 2 of the settlement
agreement. Specifically, appellant alleged that on December 26, 1997,
Person A gave her a "fact finding" for allegedly delaying delivery of mail
and that Person A was ordered to do so by Person C. In determining there
was no breach, the agency noted in its final decision that Person C, the
current Manager of Customer Services, indicated that he was not aware of
the settlement agreement, but that having seen the agreement subsequently,
he would honor its terms. The agency also stated that appellant initiated
a request for EEO counseling regarding the fact finding.
On appeal, appellant contends that Person A and Person C were the agency
officials named in the three complaints that she withdrew in exchange
for the settlement agreement; that Person C's statement that he was
unaware of the settlement agreement was untrue; and that Person B told
her that he had informed Person A that he was not to have anything to do
with appellant. In addition, appellant contends that the agency was
negligent in not informing Persons A and C of the settlement agreement
and that it was the practice of the agency not to have its managers and
supervisors comply with EEO settlement agreements, noting that Person A
and Person C have violated every EEO complaint that she has ever settled
with the agency. Appellant also notes that she withdrew her request
for informal counseling regarding the fact finding.
In response to the appeal, the agency states that Person B was no longer
assigned to appellant's work unit and that Person C was unaware of
the terms of the settlement agreement until appellant advised him that
Person A was not to supervise her.<1> The agency also re-asserts that
appellant requested EEO counseling in Agency No. 4E-852-0065-98 regarding
the December 26, 1997 fact finding but that she withdrew the allegation
as a result of a remedy received through the grievance process.
The record contains an Information for Precomplaint Counseling for Agency
No. 4E-852-0065-98. Therein, appellant alleged that Person C returned
to the Maryvale Post Office in August 1997, and resumed his continued
harassment of her by issuing orders on December 11, 1997 to her supervisor
for a fact finding and that on December 26, 1997, Person A gave her a
fact finding. The Information for Precomplaint Counseling also reflects
that the fact finding was issued by Person A and that it concerned theft,
mistreatment, destruction of or failure to protect mail, or purposely
delaying the timely delivery of mail. Appellant also alleged in the
Information for Precomplaint Counseling that Person A charged her with
incomplete mail disposition. A Withdrawal of Request for Counseling in
Agency No. 4E-852-0065-98 contained in the record reveals that appellant
withdrew her request for counseling and she therein noted that she was
vindicated in the grievance process regarding the fact finding.<2>
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement, then the
complainant shall notify the EEO Director of the alleged noncompliance.
29 C.F.R. �1614.504(a). The complainant may request that the terms
of the settlement agreement be specifically implemented or request
that the complaint be reinstated for further processing from the point
processing ceased. Id. EEOC Regulation 29 C.F.R. � 1614.504(b) requires
an agency to resolve the matter and to respond to the complaint, in
writing. Pursuant to �1614.504(b), if the complainant is not satisfied
with the agency's attempt to resolve the matter, the complainant may
appeal to the Commission for a determination as to whether the agency
has complied with the terms of the settlement agreement. The Commission
is authorized pursuant to 29 C.F.R. �1614.504(c) to order the agency to
comply with the terms of the agreement or, alternatively, to order the
agency to reinstate the complaint.
Settlement agreements are contracts between the appellant and the agency
and it is the intent of the parties as expressed in the contract,
and not some unexpressed intention, that controls the contract's
construction. Eggleston v. Department of Veterans Affairs, EEOC Request
No. 05900795 (August 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d
296 (7th Cir. 1938). In reviewing settlement agreements to determine
if there is a breach, the Commission is often required to ascertain the
intent of the parties and will generally rely on the plain meaning rule.
Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29, 1994)
(citing Hyon v. U.S. 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, then its meaning must be determined from
the four corners of the instrument without resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
Upon review, we find that the agency breached paragraph 2 of the
settlement agreement when Person A issued appellant a fact finding, an
action we find was supervisory in nature.<3> That Person C was allegedly
unaware of the settlement agreement did not excuse the agency from
compliance with the terms of the agreement. Although the agency is in
breach of one provision of the settlement agreement, we will exercise our
discretion and order specific implementation of the settlement agreement.
Since the fact finding issued by Person A was in clear violation of
paragraph 2 of the settlement agreement, equitable consideration dictates
that the case be remanded to the agency for it to comply with paragraph
2 and to determine whether any record of the fact finding exists in
appellant's official personnel file or in any supervisory record,
to expunge any such records and to provide sufficient documentation
regarding the expungement or the non-existence of such records.
Consistent with our discussion herein, the agency's final decision is
REVERSED and the matter is REMANDED to the agency for further processing
in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall provide adequate documentation that it has informed
Person A that he is not to engage in the supervision of appellant.
If Person A no longer works as a supervisor or for the agency, the agency
shall produce documentation establishing this fact.
2. The agency shall conduct a supplemental investigation to determine
whether a record of the fact finding given by Person A exists in
appellant's official personnel or supervisory files and provide
documentation that it has conducted the investigation and submit its
results. The investigation shall include, but is not limited to, an
inquiry of appropriate personnel officials and appellant's supervisors.
If, for example, the agency is unable to obtain an affidavit, the agency
shall provide an explanation why an affidavit cannot be obtained.
3. If any record of the fact finding exists in appellant's official
personnel files or supervisory files, the agency shall produce evidence,
including affidavits, establishing that such records have been expunged.
If no record of the fact finding exists in appellant's official personnel
or supervisory files, the agency shall provide evidence, by affidavit,
indicating how it determined that no such record exists.
4. All actions shall be completed within 30 calendar days of the date
that this decision becomes final.
All reports, affidavits, and letters establishing that the agency has
completed provisions 1, 2, 3, and 4 of the Order must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
April 30, 1999
DATE Ronnie Blumenthal, Director
1Other than its assertion, the agency did not provide any statement from
Person C.
2The grievance records are not contained in the record.
3 Although a "fact finding" is not specifically defined in the record,
what is clear is that a fact finding is an action that is undertaken by
a supervisor.