0120112491
08-23-2012
Virginia M. Hall, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Virginia M. Hall,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120112491
Agency No. 4H320012708
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 9, 2011, 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.
BACKGROUND
Complainant was employed as a Rural Carrier at the Agency's facility in Palm Coast, Florida. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On August 8, 2008, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) [Postmaster] will write to Manager H.R. and the Manager of H.H.R. to request that [Complainant] be converted to modified assignment. [Postmaster] will explain that [Complainant] reached MMI in '02m another employee reached MMI [maximum medical improvement] in '05 and was converted to modified and [Complainant] was not. [Supervisor] will include the quote from ELM. {Postmaster] will let them know that she has filed an EEO & Grievance on this matter.
(2) [Postmaster] will send this [by] certified [mail] and will copy all correspondence to [Complainant]. [Supervisor agrees there will be no negative correspondence].
(3) [Postmaster] will investigate other modified positions that might be available, such as Admin., or within her craft.
(4) If any opening becomes available after this initial request, [Postmaster] will resubmit the request that [Complainant] be placed in a modified assignment.
(5) Item 1 & 2 will be completed by August 15, 2008.
Complainant contacted an EEO counselor on September 17, 2010, and alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to comply with provision (4) when a residual data clerk position became available in August 2010, and a clerk was brought in to fill the position instead of providing it to her.
In its March 9, 2011 FAD, the Agency concluded that it was not in breach of the agreement. The Agency indicated that the Postmaster stated he had complied with all of the stipulations, but had been out of the facility since April 2009. The Agency stated the duties of the data clerk were outside of Complainant's medical restrictions and that she had been given a modified clerk assignment since December 2010.
The instant appeal followed. In her appeal, Complainant asserts she could have been placed in the August 2010 data clerk position and that she should not have been placed in a modified position in another craft.
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 Agency states that management provided statements that it had complied with the agreement. However, in the record provided by the Agency to this Commission, no copies of said statements or other evidence was submitted to establish that compliance actually occurred. In Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). The Agency failed to submit statements from any management official to support its decision that it had not breached the agreement.
As such, the Commission finds the Agency failed to submit evidence that the agreement was not breached. Further, it is not clear from the record before us whether Complainant seeks specific performance or desires to have her underlying EEO complaint reinstated. If Complainant seeks specific performance, she should be placed in the data clerk position provided she can performs the duties of the position within her current medical restrictions.
The Agency's decision finding no breach is REVERSED and the matter is REMANDED as set forth below.
ORDER
Within 30 days of the date this decision becomes final, the Agency shall give Complainant the option of reinstating her underlying EEO complaint or seeking specific performance of the terms of the August 8, 2008 settlement agreement. If Complainant seeks specific performance, she may be required to provide medical documentation showing that she can perform the duties of the data clerk position. If she provides such documentation, she should be placed in the position as required by the agreement.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (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), 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 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 (R0610)
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 (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 23, 2012
__________________
Date
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0120112491
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112491