01A33845
09-29-2003
Anita Bagwell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anita Bagwell v. United States Postal Service
01A33845
September 29, 2003
.
Anita Bagwell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33845
Agency No. 4C-440-0018-02
DECISION
Complainant filed an appeal with this Commission from a May 12, 2003
agency decision finding that it had not breached the terms of a November
19, 2001 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
The parties agree employee [Person A] will not be put in a position where
she will have direct or indirect authority over counselee [complainant]
or [Person B].<1>
In an April 23, 2003 letter to the agency, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant stated that on March 29, 2003, she became aware that Person
A was put in a position that �could have� direct authority over her and
did have indirect authority over her. She also stated that Person A
appeared at the Beachwood Station on March 31, 2003, and April 22, 2003.
In its May 12, 2003 decision, the agency stated that Person A had no
supervisory authority over complainant, noting that the Manager of
Customer Operations and the Acting Manager of the Beachwood Station
denied that Person A had any such authority over complainant.
On appeal, complainant re-asserts that Person A has indirect supervisory
authority over her. She alleges that Person A came over to her �case�
on March 31, 2003, May 19, 2003, and May 29, 2003, �to show� complainant
that she was in a higher level position and that Person A engaged in
those actions to intimidate and humiliate complainant.
In its response to complainant's appeal, the agency contends that
Person A was in a letter carrier position on March 31, 2003, and that
she began a detail as Acting Delivery/Customer Service Supervisor at the
Glenville/Bratenahl Station on April 22, 2003. The agency states that
although Person A did return to the Beachwood Station for a short time for
the purpose of conducting a security audit as the Acting Delivery/Customer
Service Supervisor, she had no supervisory authority over any employee
at the Beachwood Station while conducting the audit.
The record contains a May 1, 2003 Security Audit form for the Beachwood
facility. In response to specific items on the form, Person A recorded
the number of vehicles on site and the number of vehicles unlocked.
She also answered �yes� or �no� as to whether the building doors were
locked, whether she was challenged upon entering the facility and whether
employees were wearing identification badges. The record also contains
an Assignment Order (PS Form 1723) which reflects that Person A began
an assignment as the Acting Supervisor of Delivery/Customer Service on
April 22, 2003, at the Station B/C Complex 44103. The assignment was
scheduled to end on September 19, 2003.
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 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 resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Upon review, the Commission concludes that the agency is not in breach of
the settlement agreement. The agreement prohibits Person A from being
placed in a position wherein she had authority, direct or indirect,
over complainant. There is no evidence that following the execution of
the settlement agreement, Person A's position was one that had direct or
indirect authority over complainant. In addition, there is no prohibition
in the settlement agreement against Person A being on the premises of the
Beachwood Station. Although there is evidence that Person A was present
at the Beachwood Station and although complainant alleges that Person
A came by her �case,� these incidents fail to demonstrate that Person A
occupied a position that had authority over complainant. Without more,
Person A's presence at the Beachwood facility, her alleged presence at
complainant's �case,� and her performance of the audit, do not show that
she was in a position with authority over complainant.
Accordingly, the agency's decision finding no breach 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
September 29, 2003
__________________
Date
1The record reveals that complainant and
Person B both signed the settlement agreement. The Commission notes that
Person B has also alleged a breach of the November 19, 2001 settlement
agreement which is being addressed in EEOC Appeal No. 01A34006.