01a50966
04-21-2005
Anita K. Mann, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anita K. Mann v. United States Postal Service
01A50966
04/21/05
.
Anita K. Mann,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50966
Agency No. 1L-531-0109-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 5, 2004, finding that it was
in compliance with the terms of the October 18, 2001 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 Commission hereby REMANDS
the agency's decision for supplemental investigation.
The settlement agreement provided, in pertinent part, that complainant
will be hired by the agency into the next available PTF Level 4 Mail
Handler position. By letter to the agency dated July 5, 2004, 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 placed another employer in a PTF
Mailhandler position on November 2, 2002.
In its October 5, 2004 FAD, the agency concluded that it had not
breached the settlement agreement because the employee placed in the
PTF Mailhandler position on November 2, 2002 was reassigned, not hired
or reinstated.
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).
In the instant case, we find that the record is ambiguous as to whether
the agency breached the settlement agreement. The agreement states
that complainant will be hired into the next available PTF Level 4
Mailhandler position. The record reveals that an employee (�E1") was
placed in a PTF Mailhandler position on November 2, 2002 pursuant to
a negotiated agreement between him and the agency.<1> The negotiated
agreement provided that E1 would be permanently reassigned from Letter
Carrier to the Mailhandler Craft because he successfully completed a
temporary reassignment as a Mailhandler. The record does not indicate
whether he was temporarily assigned to a Mailhandler position in order to
fill an opening nor whether that position was a PTF Level 4 Mailhandler
position. The record also does not indicate whether he was temporarily
assigned to the position before or after complainant's settlement
agreement was signed. Finally, the record does not indicate whether
E1's subsequent permanent assignment was to a PTF Level 4 Mailhandler
position and whether the permanent assignment was possible because of
an availability in that position.
The agency's argument that it did not breach the agreement because E1
was reassigned instead of hired or reinstated is inapposite. We note
that, under the terms of the instant settlement agreement, the pertinent
question is why E1 was placed in a Mailhandler position, rather than how.
The settlement agreement requires that complainant be hired into the next
available PTF Level 4 Mailhandler position. If the agency filled that
position by hiring, reinstating, or reassigning of another employee, the
settlement agreement would be breached. The settlement agreement does
not specify that breach would only occur if another person were hired
or reinstated to the position, but not if he or she were reassigned.
Thus, the record must be completed to indicate why E1 was temporarily
and later permanently reassigned to a Mailhandler position, whether
those personnel actions took place, and whether that position was of a
kind that should have been given to complainant.
Accordingly, the Commission will direct the agency to conduct a
supplemental investigation in this matter according to the order below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, as well
as take the following actions with the cooperation of complainant and
his representative if such cooperation is needed:
(1) The agency shall obtain and produce evidence as to why and under
what circumstances E1 was temporarily assigned to a Mailhandler position
and later permanently assigned to such a position. In particular, the
agency shall obtain and produce evidence as to whether E1 was temporarily
assigned and later permanently assigned to the Mailhandler Craft because
an available position existed as a PTF Level 4 Mailhandler.
The agency shall then issue a new final decision, with appeal rights to
the Commission, determining whether the agency was in compliance with
the settlement agreement.
All ORDERED agency actions, including the completion of the supplemental
investigation and the issuance of the new final decision, shall be
implemented within sixty (60) calendar days of the date the Commission's
decision in this matter becomes final. True copies of evidence of
compliance, including all relevant documentation, as well as the new final
decision, must be sent to the Compliance Officer 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 (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
_____04/21/05_____________
Date
1It is unclear from the record what kind of employment dispute
the agreement resolved.