0120081357
08-27-2009
Dorinda L. Evans, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Dorinda L. Evans,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120081357
Agency No. 1E-801-0045-07
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 7, 2008, finding that it was
in compliance with the terms of the April 19, 2007 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:
Additional training in mail flow within the next 6 months from the
signing of this agreement.
By letter to the agency dated October 19, 2007, complainant alleged
that the agency was in breach of the settlement agreement and requested
that the agency reinstate her underlying EEO complaint. Specifically,
complainant alleged that "[t]his settlement agreement is void as
management has failed to comply with the final settlement as written."
In its January 7, 2008 FAD, the agency concluded that it did not breach
the agreement. The final decision noted that the Manager of Distribution
Operations maintained that the agency made every effort to see that
complainant obtained additional mail flow training by arranging for
complainant to work as a dispatcher, although the agency did not need her
to work on the APPS machine. The decision further noted that the Manager
consulted with a Mail Flow Coordinator, who determined that complainant
was "completely proficient" in mail flow based on his interaction with
complainant. The decision further stated that the Mail Flow Coordinator
informed the agency that complainant is as "well versed" in mail flow
operations as "any of the personnel that work in the Mail Flow Office."
The decision stated that the Mail Flow Coordinator also reported that
during the two year period that he has been at the Mail Flow Office,
he always received accurate information from complainant regarding mail
flow issues.
On appeal, complainant contends that the agency failed to adequately
address her claim that it breached the agreement. Complainant requests
that the Commission reinstate her underlying EEO complaint. The agency
requests that we affirm its determination that it did not breach the
settlement agreement.
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 provide additional mail flow
training to complainant within six months of the signing of the April 19,
2007 settlement agreement. On appeal, complainant provided a copy of
an email from the Manager of Distribution Operations. In the email, the
Manager stated that he has made "every effort" to obtain additional mail
flow training for complainant, and the Mail Flow Coordinator informed
him that complainant is "completely proficient" in mail flow based on
his interaction with her. However, we find that this statement does not
specify how the agency provided complainant with the promised additional
mail flow training. Although the Manager stated that the agency arranged
for complainant to work as a dispatcher, there is nothing in the record
to establish that working as a dispatcher constitutes additional mail
flow training. In fact, the record is devoid of any evidence that
establishes what mail flow is, what types of mail flow training exists,
and the manner by which employees receive mail flow training.
In its decision, the agency stated that the Mail Flow Coordinator
determined that complainant is well-versed in mail flow operations, but
the agency did not provide a copy of the Mail Flow Coordinator's purported
statement for the record. Moreover, the agency appears to conflate
evidence that complainant is proficient in mail flow with evidence that
it provided her with additional mail flow training. Because of the
deficiencies in the record, we are unable to ascertain whether the agency
complied with the terms of the agreement. Consequently, the Commission
VACATES the agency's finding of no breach and REMANDS this matter to
the agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly defining
the term "mail flow," as found in the settlement. The agency shall also
supplement the record with evidence clearly addressing its compliance
with the terms of the agreement and complainant's breach claims by
documenting the types of mail flow training available during the relevant
time period; the manner by which employees are granted mail flow training;
any efforts made to provide complainant with specific, identifiable mail
flow training (including dates of these efforts); and, the results of
any efforts to provide complainant with additional mail flow training.
The supplementation of the record shall also include affidavits from
agency officials that respond to complainant's breach claim and this
decision with particularity. Additionally, the agency shall provide
documentary evidence regarding its obligations under the settlement
agreement. Within ninety (90) calendar days of the date this decision
becomes final, the agency shall issue a new decision concerning whether
it breached provision (4) of the April 19, 2007 settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
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
08/27/09
____________
Date
2
0120081357
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120081357