0120070916
03-30-2009
Berta E. Joseph, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Berta E. Joseph,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120070916
Agency No. 4G-760-0083-00
DECISION
After the agency failed to respond to complainant's breach claim,
complainant filed a timely appeal to the Commission on December 4, 2006
in which she alleged that the agency breached the February 22, 2002
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 settlement agreement provided, in pertinent part, that:
[Complainant] will be reinstated to the position of part-time flexible
clerk or mail handler in the Fort Worth District (Fort Worth city) subject
to the next approved vacancy providing [complainant meets] all employment
requirements (drug screen, criminal checks, and physical). [Complainant]
also understand[s] that [she] will serve a new 90-day probationary period
from the effective date of reinstatement. There is no back pay involved.
In a letter dated October 7, 2003, complainant alleged that the agency
breached the agreement by failing to reinstate her to the position of
part-time flexible clerk or mail handler by October 2003. The agency
issued a decision on October 10, 2003 in which it concluded that it
had not breached the agreement because it had not hired any clerk and
mail handlers since the signing of the settlement agreement because of
repositioning and excessing. In an appellate decision, the Commission
found that the record was inadequate to determine whether the agency had
complied with the agreement. Berta E. Jackson v. United States Postal
Service, EEOC Appeal No. 0120040668 (April 8, 2004). The Commission noted
that the record contained a list of persons on which complainant appeared
to be the third "approved" entry, but the list was not accompanied by
any narrative or explanatory statement signed by an appropriate agency
official to corroborate the agency's conclusions regarding the hiring
of part-time mail handlers and clerks since the date of the settlement
agreement.
On May 3, 2004, the agency issued a notice of compliance addressed to
the Commission in which it stated that a Human Resources Specialist
determined that no approved vacancies have arisen since the execution
of the agreement. The agency further stated that an individual who was
placed into a mail handler position was selected and offered the position
in January 2002, prior to the signing of the settlement agreement.
The record was also supplemented with an affidavit from the Human
Resources Specialist in which the Specialist stated that complainant
was third on a list of persons to be placed into a part-time flexible
clerk or mail handler.
By letter to the agency dated July 27, 2006, complainant again alleged
that the agency breached the settlement agreement and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that although she was reinstated as a part-time flexible clerk
on March 8, 2006, the agency hired several new part-time flexible mail
handlers and clerks before she was reinstated. Complainant stated that
the mail handlers hired before she was hired will have bidding seniority
over her for future assignments and requested that the agency pay her
back pay and benefits retroactively to the date the first mail handler
or clerk was hired after the execution of the settlement agreement.
When the agency did not respond to complainant's breach claim, complainant
appealed the matter to the Commission. In her appeal statements,
complainant reiterates the assertions contained in his breach notice.
The agency inexplicably contends that its "position remains the same
as stated in the final agency decision," although complainant maintains
that the agency has not responded to her breach notice, and there is no
indication in the record that the agency has issued a final decision on
complainant's second breach claim.
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, the agency agreed to reinstate complainant into
the next vacant part-time flexible clerk or mail handler position in the
Fort Worth District. Complainant maintains that she was reinstated as a
part-time flexible clerk on March 8, 200, but the agency hired several new
part-time flexible mail handlers and clerks before she was reinstated.
On appeal, complainant submits a Human Resources seniority roster for
part-time flexible mail handlers at the Fort Worth Post Office. The list
indicates that 25 people have a seniority date that is after the date
of the execution of the settlement agreement and before complainant
was reinstated. Thus, in light of complainant's documentation and the
agency's failure to rebut complainant's breach claim, we find that the
agency breached the agreement by failing to reinstate complainant into
the first available vacant part-time flexible clerk or mail handler
position in the Fort Worth District.
To remedy a finding of breach, the Commission may order reinstatement of
the underlying complaint, or enforcement of the agreement's terms. See
29 C.F.R. 1614.504(c). In this case, we find that ordering specific
performance of the agreement is the appropriate remedy in this case.
In this case, we find that this includes not just reinstatement to the
promised position, but also granting complainant the same seniority
date as the first person placed into a part-time flexible clerk or mail
handler position in the Fort Worth District after February 22, 2002.
Accordingly, the Commission hereby directs the agency to take remedial
actions in accordance with this decision and the ORDER below.
ORDER
To the extent that the agency has not already done so, the agency shall
immediately grant complainant the seniority date of the first person
placed into a part-time flexible clerk or mail handler position in the
Fort Worth District after February 22, 2002, including all benefits and
privileges that accrue from the earlier seniority date.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 (R0408)
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 (Z1008)
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
_March 30, 2009_________________
Date
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0120070916
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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