01A45218
11-09-2004
Tina Felder-Jordan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tina Felder-Jordan v. United States Postal Service
01A45218
11-09-04
.
Tina Felder-Jordan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45218
Agency No. 4E-800-0162-04
DECISION
Complainant filed a timely appeal with this Commission for a determination
regarding whether the agency violated the terms of a settlement
agreement, which resolved an EEO complaint filed against the agency.
We find that the appeal is timely (see 29 C.F.R. � 1614.401(d) and 29
C.F.R. � 1614. 504(a) and (b)), and is accepted in accordance with 29
C.F.R. � 1614.405.
The issue on appeal is whether the agency violated the terms of its
settlement agreement with complainant.
Complainant and the agency entered into a settlement agreement on April
28, 2004. In order to resolve EEO Case No. 4E-800-0162-04, the parties
agreed as follows:
1. [Agency official] has offered an apology concerning the e-mail
that was posted. It is further agreed a written letter of apology
will be completed and delivered by [complainant] before public posting.
The written apology will be posted for a period of 30 days of the same
bulletin board as the original memo. To be posted by May 10, 2004.
2. [Agency official and complainant] will meet once a week before the
stand ups to go over performance issues which include communication
issues in the work environment.
3. We hereby agree to rescind the discipline dated March 11, 2004 issued
to [complainant] and a copy will be forwarded to the Personnel Department
by fax by 4:30 today.
4. Complainant agrees to withdraw the following grievances: #1 Privacy
Act (04BL313) #2 Letter of Warning (04BL319).
After the settlement agreement was signed, complainant and her union
representative continued with a grievance concerning the matter at
issue, i.e., the posting of information on a bulletin board referring to
complainant being disciplined. At Step 2 of the grievance proceeding,
the Step 2 management designee stated that this matter had been
resolved by the above settlement agreement and that, complainant's union
representative, had stated at a meeting that �this grievance would become
moot with the . . . settlement.�
In May 2004, complainant's union representative informed the agency
that the settlement agreement had been violated. Specifically, he
maintained that:
I was quoted in a Step 2 grievance decision. One of the issues raised
by complainant was [a] Privacy Act violation and confidentiality which
prompted [her] to file an EEO complaint. We feel that what was said
to enable the settlement agreement is a violation of the issue raised
in REDRESS.
On June 30, 2004, the agency issued a decision that found that
there was no violation of the settlement agreement. On appeal,
complainant's representative clarified their position. He argued, in
pertinent part, that the documentation that was signed by the parties,
in order to participate in the agency's mediation program, required
confidentiality and that the agreement to mediate should be seen as part
of the settlement agreement itself. According to the representative,
paragraph 4 of the agreement to mediate provides that the parties would
�not gather information for a hearing or trial.� Moreover, he stated
that, �Complainant contends [the] agreement to mediate is part of [the]
settlement agreement as an enabler to reach agreement.�
Settlement agreements are contracts between the complainant and the agency
to which ordinary rules of contract construction apply. 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 any resort to extrinsic evidence
of any nature. See Montgomery Elevator v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). Based on the record before us, we find
that the comments of the Step 2 management designee during the grievance
proceeding did not violate the specific terms of the settlement agreement.
To the extent that complainant believes that the agreement to mediate was
violated, we would note that this issue is not within the scope of our
purview. The agency's determination that it did not breach the terms of
its settlement agreement with complainant was proper and it 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
_____11-09-04_____________
Date