01992183_r
11-02-2001
Sheryl Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sheryl Wilson v. United States Postal Service
01992183
November 2, 2001
.
Sheryl Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01992183
Agency No. 4E-800-1068-96
Hearing No. 320-97-8102X
DECISION
Complainant filed a timely appeal with this Commission regarding an
alleged breach of a July 2, 1998 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:
(11) Within ninety (90) days of the signing of this agreement,
management will make efforts to locate a higher level detail assignment
for Complainant. This assignment would be within a reasonable commuting
distance from her duty station of Aurora, Colorado. Further, the detail
would be available for a reasonable period of time, i.e, at least thirty
(30) days or more;
(12) If no detail assignment can be located within the ninety (90)
day period, Complainant will be offered the
opportunity to be the OIC at the Ft. Lupton facility.
By letter to the agency dated October 16, 1998, complainant alleged that
the agency breached the settlement agreement. Specifically, complainant
alleged that the agency failed to provide a higher level detail within
ninety days of the date the settlement agreement was executed, pursuant
to provision 11; and the agency failed to provide her the opportunity
to be the OIC at Ft. Lupton at the expiration of the ninety-day period,
pursuant to provision 12.
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).
In the instant case, the Commission finds that the agency breached the
terms of the settlement agreement. Copies of electronic e-mail messages
in the record reflect that complainant unsuccessfully corresponded and met
with agency officials on repeated occasions regarding the �higher detail�
position identified in provision 11. Moreover, the record reflects
that after the expiration of the specified 90-day period identified in
provision 12, complainant unsuccessfully attempted to secure the OIC
positions. We note, for example, that on December 8, 1998, complainant
submitted an e-mail message to an agency official, requesting that she
be considered for an OIC position. Complainant noted that �. . . I do
have an EEO agreement which has not been fulfilled and I believe that
this would satisfy the agreement.� A review of the record reveals that
the agency breached the settlement agreement by neither making efforts
to locate a higher level detail for complainant, or by offering her the
opportunity to be an OIC at the agency's Fr. Lupton facility.
The Commission exercises its discretion and orders the agency to
specifically comply with the settlement agreement provisions at issue.
Because ninety days have elapsed since the execution of the settlement
agreement and no �higher level� detail assignment was located by the
agency as addressed in provision 11 of the agreement, the agency shall
comply with the agreement by afforded complainant the opportunity to
be OIC at the Fr. Lupton facility, as articulated in provision 12 of
the agreement. Accordingly, based on our determination that the agency
breached the settlement agreement, we REVERSE the agency's decision that
it complied with the above referenced provisions, and we REMAND the case
to the agency for action as set forth in the ORDER below.
ORDER
The agency is ordered to immediately offer complainant the opportunity
to be an OIC at Ft. Lupton. The agency must provide complainant with
all personnel documentation relating to this offer.
The agency must provide the Comission with evidence of its compliance
with this Order, 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 (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
NOVEMBER 2, 2001
__________________
Date