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