01A30668_r
05-22-2003
Arnita Fairley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arnita Fairley v. United States Postal Service
01A30668
May 22, 2003
.
Arnita Fairley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30668
Agency No. 1C-276-0058-02
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated October 8, 2002, finding that it was in
compliance with the terms of the July 2, 2002 settlement agreement into
which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) Prompt attention to any alleged infractions/incidents (as soon as
aware), to include thorough investigation.
(2) Improve better communication between supervisor-supervisor/craft
(Notification given by MDO will be attending service talks).
Apology scheduled 7/29/02 in designated area (room for 010/statement
employees) to include, [complainant], [Person A], [Person B], [Person
C], and [Person D]. Notification reminder provided by [Person C].
(4) MDO will assist/train 204-B's concerning body language especially
hand gestures.
Follow up with Plant Manager concerning no future incidents with
attachment item 5 (Postal Bulletin 21811,3-19-92 page 3) July 2, 02 to
include all 204-B's. Request response in writing.
Request that all statements be purged for future use, all statements will
be purged after [Person E's] statement of agreement. Request response
in writing. All statements be purged after [Person E's] statement,
in writing be given to Person D.
By letter to the agency dated July 30, 2002, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that her EEO complaint be reinstated for processing. Specifically,
complainant alleged that the agency failed to comply with provisions (1),
(2), (3), and (5) of the agreement.
In a clarification letter dated August 28, 2002, complainant stated
with regard to provision (1), the agency failed to conduct a thorough
investigation, even to include EEO Case 1C-276-0058-02. With regard to
provision (2), complainant states that communications have gotten worse,
to include failure to provide information requests in a timely manner,
failure to inform employees about ODL Assignments, and failure to attend
any service talks as of August 28, 2002. With regard to provision (3),
complainant stated that the apology scheduled for July 29, 2002, was
not held. With regard to provision (5), complainant stated that the
agency failed to respond in writing with concerns from the Plant Manager.
In its October 8, 2002 decision, the agency concluded that it did not
breach the terms of the July 2, 2002 settlement agreement. The agency
stated that with regard to provision (2), the agency noted that Person
D stated that she believes that there has been some improvement of
communications, and that she has attended several service talks since
this agreement was signed.
With regard to provision (3), due to annual leave and other commitments,
Person D was not able to schedule the requisite meeting on July 29, 2002.
The agency stated that the meeting was scheduled on September 21, 2002,
and Person A apologized for the incident. Further, the agency stated
that Person D claimed she gave prompt attention to the infraction,
and reminded Person A of her responsibility of treating all employees
with dignity and respect, when it applies to her regular assignment or
detailed assignments. With regard to provision (5), Person D stated that
she spoke with Person E in reference to providing written correspondence
to complainant concerning his policy on violence and behavior in the
workplace, and he indicated that he would provide complainant a written
statement.
On appeal, complainant states that the scheduled apology referenced in
provision (3) was not held. Complainant disputes Person D's statement
that the apology was given on September 21, 2002. Complainant claims
that Person A did not apologize as stated in the settlement agreement.
In addition, complainant states that since the signing of the agreement,
there have not been any normal service talks, which are a requirement for
management to have for the employees to better understand the agency.
Complainant states that management has eliminated the classroom
environment and instead �walks� with service talk information on the
workroom floor. Further, complainant states that there has been no
written statement provided on violence and behavior on the workroom floor.
In response to complainant's appeal, the agency states that with regard
to provision (1), Person D did give prompt attention to the infraction
and reminded Person A of her responsibility to treat employees with
dignity and respect. Additionally, the agency argues that complainant
relinquished any further processing of EEO Complaint 1C-276-0058-02 when
she signed the present settlement agreement. With regard to provision
(2), the agency notes that complainant claimed that Person D was not at
an August 28, 2002 service talk; however, the agency states that there
is nothing in the settlement agreement as to the number of service talks
that Person D would attend. With regard to provision (3), the agency
acknowledges that the apology did not occur on the date agreed; however,
the agency states that management offered the apology on September 20,
2002, but it was rejected by complainant. With regard to provision (5),
the agency states that the letter was sent to complainant on December
17, 2002.
The record contains a copy of a December 17, 2002 letter from the Plant
Manager to complainant stating that �every employee at every level of
the [agency] should be treated at all times with dignity, respect,
and fairness.� The letter further states that the agency and �all
its employees will abide by the National Violence & Behavior in the
Workplace Policy.�
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 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, we find that complainant has not shown that the agency
breached provision (1) of the July 2, 2002 settlement agreement.
According to this provision, the agency was to give prompt attention
to any alleged infractions/incidents (as soon as aware), to include
thorough investigation. Despite complainant's argument, we note that
the settlement agreement did not require the agency to investigate EEO
Cased 1C-276-0058-02. We find that the present settlement agreement
signed by both parties on July 2, 2002, ended any further obligation
of the agency with regard to the processing of the underlying complaint
(unless the complaint is reinstated).
With regard to provision (2), we are unable to determine whether the
agency complied with this provision. Provision (2) stated that there
would be improved communications between the supervisors and the craft
and that notification would be given by Person D who will attend service
talks. Complainant alleges that as of August 28, 2002, Person D has
failed to attend any service talks. Although the agency claims that
Person D has attended several service talks, it has failed to provide
any evidence in support of this assertion. Therefore, we are remanding
this issue for further information.
With regard to provision (3), we find that complainant has not shown
noncompliance with this provision by the agency. Under provision (3),
an apology was to be scheduled on July 29, 2002, in designated area (room
for 010/statement employees) to include, complainant, Person A, Person B,
Person C, and Person D. The agency acknowledges that the apology did not
occur on the stated date due to annual leave constraints. The agency
states, however, that a meeting was scheduled for September 20, 2002, and
Person A was scheduled to apologize but complainant rejected the apology.
The record contains a September 20, 2002 letter from complainant to
the EEO Office in which she states that �management offered an apology
on September 20, 2002, however the offer was rejected.� With regard to
the apology, complainant states that she does not believe Person A is
sincere and argues that the sense of urgency was absent. Although the
settlement agreement stated that the apology was to occur on July 29,
2002, we find that the agency attempted to cure the breach by scheduling
the apology for September 20, 2002. The record reveals that despite
the agency's attempts to reschedule the stated apology, complainant
rejected this offer. Therefore as a result of complainant's rejection
of the offer of apology in September 2002, we find that the agency is
relieved from further compliance with this provision.
With regard to provision (5), we find that the agency has shown compliance
with this provision. According to both parties, under provision (5),
the Plant Manager was to provide a written statement concerning his
policy on violence and behavior in the workplace. We note that the record
contains a December 17, 2002 written statement from the Plant Manager to
complainant stating that all employees should be treated at all times with
dignity, respect, and fairness and that all agency employees will abide
by the National Violence & Behavior in the Workplace Policy. Although the
December 17, 2002 letter is dated after complainant's appeal was filed,
we find that the agency has shown that it has now complied with provision
(5) of the agreement.
Accordingly, the agency's decision that it did not breach provisions
(1), (3), and (5) is AFFIRMED. The agency's decision that it did not
breach provision (2) is VACATED and we REMAND the matter to the agency
for further processing in accordance with the Order below.
ORDER
The agency shall supplement the record with documentation showing
whether it has complied with provision (2) of the July 2, 2002 settlement
agreement. Specifically, the agency shall provide evidence indicating
whether the MDO has attended service talks as specified in the agreement.
Within 30 days of the date this decision becomes final, the agency
shall issue a decision on whether the agency breached provision (2)
of the settlement agreement. A copy of the decision must be submitted
to the Compliance Officer, as referenced herein.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
May 22, 2003
__________________
Date