0120072688
09-13-2007
Cheryl R. Campbell, A.K.A. Cheryl R. Sherman Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cheryl R. Campbell,
A.K.A. Cheryl R. Sherman
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072688
Agency No. 1C191015298
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission following the
agency's failure to timely issue a final decision (FAD) in response to her
allegation that the agency was in breach of the terms of the October 22,
1999 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:
(1) If Complainant does not incur any discipline within six (6)
months from the date of this agreement, any and all informal or formal
discipline, including removals, will be expunged from all Postal Service
records. In the interim, all informal and formal disciplinary actions,
including removals, will be removed from any and all records maintained
by any and all [agency] supervisors.
By correspondence dated February 23, 2007, complainant alleged that the
agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to remove all copies of discipline from her
personnel records and that this resulted in her being denied a number of
positions for which she had applied over the years. Complainant maintains
that her file still contains copies of a December 1998 Notice of Removal,
as well as PS Form 50s which provide a record of discipline received.
After the agency failed to respond within 35 days, complainant filed an
appeal with the Commission, pursuant to 29 C.F.R. � 1614.504. The agency
subsequently issued a FAD on June 15, 2007.
In its FAD, the agency concluded that there was no breach. Specifically,
the agency concedes that a former Plant Manager (ROM) of the relevant
agency facility reviewed the file following complainant's breach
allegation and found that a December 20, 1998 Notice of Removal was still
in complainant's records. Upon discovering the Notice, RMO removed
the document from complainant's file. Therefore, the agency argues,
it has complied with the Agreement. In addition, the agency argues,
complainant's breach allegation is untimely because she did not notify
the agency within 30 days.
As a preliminary matter, we find complainant's breach allegation to have
been timely raised, and we further find that her appeal is not premature.
Under � 1614.504(a), a complainant shall notify the agency of the alleged
noncompliance within 30 days of when the complainant knew, or should
have known, of the alleged noncompliance. Complainant contends that
she first learned of the agency's noncompliance on February 12, 2007.
The record indicates that on February 23, 2007 she mailed her breach
allegation to an agency address at 475 L'enfant Plaza, in Washington DC.
Given that the Agreement does not notify complainant that any breach
allegations should be submitted to the agency EEO Director, we find that
complainant's breach allegation was timely. As regards the agency's
argument that complainant's appeal is premature, we note that after
notifying an agency of the alleged breach, a complainant "may file
. . . an appeal 35 days after ... she served the agency with the
allegations of noncompliance." � 1614.504(b). We therefore find that
complainant's appeal is not premature.
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 does not deny that the December 20,
1998 Notice of Removal remained in complainant's file, in violation
of the Agreement, until RMO recently removed it. The agency further
admits that a number of PS Form 50s also remain the file. While the
recent removal of the Removal notice means that the agency is currently
in compliance with the Agreement, for over seven years the agency has
been in breach of the Agreement. Furthermore, due to the length of time,
the breach is material and the agency's recent action cannot rectify or
erase the seven-year breach. In addition the breach resulted in harm,
according to complainant, who maintains that she was denied a number
of positions during the past seven years and that the presence of the
Removal letter in her file contributed to those rejections.
As regards the PS Form 50s which remain in complainant's file, the agency
contends on appeal that these post-date the Agreement and are thus not
subject to the Agreement. While any discipline, including records of
discipline recorded in PS Form 50s, incurred by complainant after the
dates addressed in the Agreement may remain in complainant's records
without violating the terms of the Agreement, we note that the record
shows that at least one PS Form 50 appears to be dated February 29, 1999.
This PS Form 50 states that charges against complainant were pending.
The Agreement states that "if Complainant does not incur any discipline
within six (6) months from the date of this agreement," disciplinary
records would be removed. The Agreement, therefore, was not to go into
effect until six months had passed, as long as complainant incurred
no additional discipline. The agency has made no claim, and there
is nothing in the record to suggest, that during the six month period
complainant incurred additional discipline. Therefore, in order to be
in compliance, at the end of six months, or by the end of April 1999,
the agency should have removed all disciplinary records, including the
February 29, 1999 PS Form 50. The Agreement spells this out when it
states "in the interim, all [disciplinary records] will be removed."
We note that February 29, 1999 falls within this "interim" period.
Because the December 20, 1998 Removal Notice and the February 29,
1999 PS Form 50 remained in complainant's file for over seven years,
we find that the agency breached the Agreement.
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, complainant has stated that she
seeks reinstatement of her complaint.
Accordingly, we remand complainant's claim for further processing. In so
doing, we note that complainant may have received some of the benefits
promised in the agreement, benefits which must be returned if she wishes
to reinstate her complaint for further processing. Specifically, the
agreement stipulated that complainant would be reinstated as a Part-Time
Flexible Employee in the Philadelphia region and that she would retain
her hiring seniority date. If complainant has already received these
benefits, and if the case is reinstated, complainant would have to return
such benefits. Furthermore we remind complainant of the difficulties
inherent in proceeding with her complaint more than seven years after the
facts alleged in her underlying complaint occurred. We therefore give
complainant the option, in accordance with the Order below, of either
returning the benefits conferred pursuant to the agreement and reinstating
the complaint, or obtaining specific performance of the agreement, which
in the instant case would mean that the agency remove the February 29,
1999 PS Form 50 from complainant's file.
ORDER
The agency is ordered to notify complainant of her option to either return
to the status quo prior to the signing of the settlement agreement or
to obtain specific performance of the agreement. The agency shall so
notify complainant within thirty (30) calendar days of the date this
decision becomes final. The agency shall also notify complainant that
she has fifteen (15) calendar days from the date of her receipt of the
agency's notice within which to notify the agency either that she wishes
to return to the status quo prior to the signing of the agreement or that
she wishes to allow the terms of the agreement to stand. Complainant
shall be notified that in order to return to the status quo ante, she
must return any benefits received pursuant to the agreement. The agency
shall determine any payment due complainant, or return of consideration
or benefits due from complainant, within thirty (30) calendar days of
the date this decision becomes final, and shall include such information
in the notice to complainant.
If complainant elects to return to the status quo ante and she returns
any benefits owing to the agency, as specified above, the agency shall
resume processing complainant's complaint from the point processing
ceased pursuant to 29 C.F.R. � 1614.108 et seq. If complainant elects not
to return to the status quo ante, i.e., not to return any consideration
owing the agency, the agency shall notify complainant that the terms
of the settlement agreement shall stand. The agency shall remove the
February 29, 1999 PS Form 50 from complainant's file.
A copy of the agency's notice to complainant regarding her options,
including the determination of consideration due or owing, as well
as a copy of either the correspondence reinstating the complaint for
processing or the correspondence notifying complainant that the terms
of the agreement will stand, 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
September 13, 2007
__________________
Date
2
0120072688
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120072688