Carol-Ann M. Ackerman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 16, 2007
0120070176 (E.E.O.C. Feb. 16, 2007)

0120070176

02-16-2007

Carol-Ann M. Ackerman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Carol-Ann M. Ackerman,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070176

Agency No.4F-945-0131-06

DECISION

On October 16, 2006, complainant filed an appeal with this Commission from

an undated final decision by the agency, finding that it was in compliance

with the terms of the July 10, 2006 settlement agreement into which the

parties entered. See 29 C.F.R. �� 1614.402; .405; and .504(b).

The settlement agreement provided, in pertinent part, that:

This agreement does need to be approved by the Area Vice-President

. . .

[Complainant] will detail to Route Exam Team Leaders and will report to

the 2007 integrated I.O.P. Coordinator as of August 1, 2006.

[The District Manager (S1)] will request a 10% increase to [complainant's]

current salary base by July 24, 2006.

At the time of the settlement agreement, complainant was employed at a

California facility of the agency. In a letter dated August 14, 2006,

complainant alleged that the agency was in breach of the tentative

settlement agreement reached on July 10, and requested that the agency

reinstate the above-indicated EEO complaint. Specifically, complainant

stated that the agreement was tentative because S1 indicated that he

had to obtain approval from the Area Vice President (S2) regarding the

salary increase. Further, complainant stated that she believes that S1

bargained in "bad faith" because he failed to submit a request to S2

and failed to respond to her inquiries regarding the salary increase

and that, on August 11, 2006, a Human Resources Manager informed her

that he denied the 10% salary increase.

In its final decision, the agency stated that it did not breach

stipulation 2 of the July 10 agreement as complainant alleged because

S1 requested an exception of the pay rules and a 10% salary increase

for complainant as agreed. The agency provided copies of two letters

from S1. The first letter, dated July 11, 2006, to the Human Resources

Manager, stated "a possible settlement left on the table was to grant

the complainant a salary increase of 10% . . . The proposed settlement

would be . . . to grant the maximum promotion percentage increase of 10%."

The second letter, dated September 12, 2006, stated that complainant was

placed in a detail as required by the agreement and that S1 requested a

10% salary increase for complainant because he did not have settlement

authority to make such an agreement and complainant was so aware.

Complainant filed the instant appeal. On appeal, complainant stated

that the July 10 document was a proposed settlement agreement as it

required additional approval, which was not sought or granted, and she

wants her formal complaint reinstated. Complainant stated that it was

significant that approval was required from the Area Vice President,

rather than the Human Resources Manager, because the Vice President was

familiar with complainant.

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 agreement itself required the approval of

upper-level management before it became effective - "This agreement does

need to be approved by the Area Vice-President." Complainant states

that the agency's representative, S1, informed her that the agreement

would require further approval. Complainant states that S1 never sought

the appropriate approval, which would have been from the Area Vice

President, and that the approval he did seek, which was from the Human

Resources Manager, denied the request. Based on the evidence of record,

it is clear that complainant and the agency did not view the matter

as settled at the time that the parties signed the document on July 10

and that the indicated approval was not obtained to settle the matter.

We find that equitable considerations mandate that the subject settlement

agreement be found void and the agency's finding of no breach be VACATED.

Accordingly, pursuant to 29 C.F.R. � 1614.504(a), we REMAND the matter

to the agency for reinstatement of the underlying EEO complaint from

the point where processing ceased.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

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 (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 (R0900)

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 (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

February 16, 2007

__________________

Date

2

01A53582

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120070176