0120092713
04-04-2011
Barbara D. Miller, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Barbara D. Miller,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120092713
Agency No. 4F-926-0128-07
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated April 16, 2009, 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
At the time of events giving rise to this complaint, Complainant worked
as a Carrier at the Agency's Carrier Annex facility in Long Beach,
California. Complainant was issued a notice of termination. Believing
that the Agency subjected her to unlawful discrimination, Complainant
contacted an Agency EEO Counselor to initiate the EEO complaint process.
On May 6, 2008, Complainant and the Agency entered into a settlement
agreement to resolve the matter. The settlement agreement provided,
in pertinent part, that:
The Agency agrees to rescind Complainant's involuntary removal. Her last
PS Form 50, Notification of Personnel Action, will be amended to reflect
that she resigned for "personal reasons." The effective date of this
resignation will be August 2, 2007. Complainant agrees that, by executing
her signature on this settlement agreement, she thereby voluntarily
resigns, and that this settlement agreement acts as her voluntary
resignation. Further, she agrees that this settlement agreement will
be placed in her Official Personnel Folder (OPF) as a permanent record.
By letter to the Agency dated January 21, 2009, Complainant alleged that
the Agency was in breach of the settlement agreement. Specifically,
Complainant alleged that the Agency failed to make the changes to her OPF.
Complainant indicated that she applied for a position with another Federal
Agency. She stated that she was selected for the position. However, she
received notice from her perspective employer that the Agency provided a
"negative reference to [Complainant's] eligibility for employment" and
that she was no longer eligible for employment with any Federal Agency.
Complainant indicated that, in January 2009, she contacted the Agency's
EEO Office who informed her that the removal action had not been removed
from her OPF. As such, she informed the Agency that it had breached the
settlement agreement and that she was harmed by the Agency's failure to
comply with the settlement agreement.
In its April 16, 2009 FAD, the Agency concluded that it did not breach
the settlement agreement. The Agency determined that a Human Resources
Generalist (HR Generalist) reviewed Complainant's electronic OPF (eOPF).
The HR Generalist averred that the record showed that Complainant's
involuntary separation was changed to a resignation and included the
corrected PS Form 50. The HR Generalist also received Complainant's
archived original OPF. The HR Generalist noted that the original OPF did
not contain the corrected forms or a copy of the EEO settlement agreement.
The HR Generalist made the changes to the original OPF, effective March
20, 2009. Therefore, the Agency indicated that it was in substantial
compliance with the settlement agreement.
CONTENTIONS ON APPEAL
Complainant appealed asserting that the Agency did in fact breach the
settlement agreement because the termination was not removed from her
official OPF at the time of the execution of the settlement agreement,
and remained in her OPF until she alleged breach. Further, Complainant
indicated that she was harmed by the Agency's failure to comply and was
denied a position with another Federal Agency.
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, we find that the record showed that Complainant's
original OPF did not have the corrected PS Form-50 until March 30, 2009,
after she filed her breach claim. As a result, she was denied employment
at another agency. Further, we note that the HR Generalist indicated in
her affidavit that Complainant's eOPF showed, on May 15, 2008, "a change
from involuntary separation to a resignation." The Commission finds
that, based on the statement from the HR Generalist, the eOPF still
makes reference to the separation action. As such, we are concerned
that the eOPF may not indicate that the removal action was rescinded as
required by the settlement agreement. Based on these facts, we find that
the Agency did, in fact, breach the terms of the settlement agreement
related to rescission of her termination.
Where this Commission finds that a settlement agreement has been breached,
the only two remedies available are specific performance of the terms
of the agreement or reinstatement of the underlying EEO complaint at
the point processing ceased 29 C.F.R. � 1614.504(c). Complainant did
not specify in her notice of breach or in her statement on appeal as to
which remedy she sought.
We, therefore, give Complainant the option, in accordance with the
ORDER below, of either reinstating her underlying EEO complaint, or
specifically enforcing the terms of the agreement. As such, we REVERSE
the Agency's determination of compliance with the settlement agreement
and REMAND the matter in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following actions:
1. Within thirty (30) calendar days of the date this decision becomes
final, the Agency shall notify Complainant of her right to void the
settlement agreement and reinstate her underlying EEO complaint, or
allow the terms of the agreement to stand with a requirement of specific
performance on the part of the Agency. Complainant shall be notified
that in order to reinstate her complaint, she must return any benefits
received pursuant to the agreement.
2. If Complainant elects to reinstate her EEO complaint, the Agency
shall resume processing the EEO complaint from the point processing
ceased pursuant to 29 C.F.R. � 1614.108 et seq.
3. If, however, Complainant elects specific performance, the Agency
shall notify Complainant that the terms of the settlement agreement shall
stand and provide Complainant with an opportunity to personally review
her eOPF and the original OPF to ensure that they reflect Complainant's
voluntary resignation and not her termination. Further, the Agency shall
have Complainant provide an affidavit indicating that she reviewed the
eOPF and the original OPF and indicate her findings based on her review.
The Agency shall provide the Commission with a copy of the affidavit.
The Agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
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
April 4, 2011
__________________
Date
2
0120092713
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120092713