0120110166
08-30-2012
Valerie A. Hughart-Phipps, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Valerie A. Hughart-Phipps,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120110166
Agency No. 4J-604-0002-09
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated September 20, 2010, finding that it was in compliance with the terms of the 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.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On October 7, 2008, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) The parties agree that the October 22, 2008 Letter of Warning In Lieu of a Seven Day (7) Time-Off Suspension remains an active discipline through September 19, 2009...If no discipline is issued from September 19, 2008 through September 19, 2009, the [Agency] agrees to rescind and expunge from [Complainant's] Official Personnel Folder the September 19, 2008 Letter of Warning and the October 22, 2008 Letter of Warning in lieu of a Seven Day Time-Off Suspension and agrees not to rely on this discipline in any future discipline.
(2) The [Agency] will consider [Complainant] for a non-competitive lateral position in accordance with established policies, procedures, and regulations.
By letter to the Agency dated September 3, 2010, 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 the Agency had breached term (2) by failing to consider her for a non-competitive, lateral position and not selecting her for an assignment as an Officer-in-Charge (OIC) at another post office.
In its September 20, 2010 FAD, the Agency concluded that it had not breached the settlement agreement. More specifically, Complainant had not applied for a non-competitive, lateral transfer to an EAS-17 supervisor position in another office. Further, as to Complainant's OIC claim, the Agency asserted that the settlement agreement did not require it to consider Complainant for a detail to a higher-level position as an OIC at another post office. Nonetheless, the Agency noted that Post Operations Manager considered Complainant each time an OIC position became available. As a result, the Agency found that it was in compliance with the settlement agreement.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Operations Manager (M1) previously made an exception for another supervisor to detail as an OIC which demonstrates that he could have done the same for her. Further, Complainant states that M1 relied upon false accusations and information in considering her for positions as the settlement agreement stated that her previous discipline would be removed from her file. Accordingly, Complainant requests that the Commission find that the Agency breached the settlement agreement.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 Complainant has failed to demonstrate that the Agency breached the terms of the agreement as alleged. The record reveals that Complainant was an EAS-17 Supervisor at the Bloomington Post Office and applied for EAS-16 Postmaster positions in at least three locations and detail assignments into a Business Solution Specialist position in two locations. There is no evidence that Complainant applied for a lateral transfer into any EAS-17 Supervisor positions at other offices. Notably, Complainant stated in her written request for a lateral transfer that she was not interested in a lateral transfer to another supervisor position and that she only requested the lateral transfer term in the settlement agreement to obtain a Postmaster position. The Commission notes that the settlement agreement only provided that the Agency would consider Complainant for a lateral transfer; not a promotion or transfer to another position. Further, the settlement agreement did not require the Agency to automatically laterally transfer Complainant, just that she would be considered for one. If Complainant had intended for the Agency to transfer her into a Postmaster position or grant her a detail assignment into another position, she should have negotiated for such before signing the settlement agreement.1
Finally, the Commission notes that Complainant appears be raising new breach allegations related to term (1) of the settlement agreement. If Complainant wishes to further pursue new breach claims, she is advised to contact the Agency's EEO Director in accordance with 29 C.F.R. � 1614.504(a). Accordingly, the Agency's letter of determination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 30, 2012
Date
1 In addition, the Commission notes that on January 21, 2010, Complainant received a letter from the Review Committee Chairperson informing her that her application for a Postmaster position in Chenoa, Illinois had been reviewed, but she had not been selected. This would not have been a lateral transfer, however she was still considered for the position.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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