0120064148
03-07-2008
Elizabeth Sloan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elizabeth Sloan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200641481
Agency No. 1A077002705
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 9, 2006, finding that it was in
compliance with the terms of the August 30, 2005 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) Management agrees that effective 8/31/05, on [complainant's]
regular scheduled days of Sunday through Thursday, she will work two
(2) days a week at the 3 Digit Belt, 2 days a week at Manual Cut &
Slash and one (1) day a week at the LCTS.
(2) Management agrees to make every effort to staff the 3 Digit Belt
with two (2) employees.
(3) When [complainant] is on the 3 Digit Belt alone, Management
recognizes that production will not be the same as if there were two
(2) people on the Belt.
(4) On Non-Scheduled days, Management agrees to put [complainant]
at the LCTS.
By letter to the agency dated February 20, 2006, complainant alleged
that the agency was in breach of the settlement agreement. Specifically,
complainant alleged that on February 3, 2006, management scheduled her to
perform the sweep function at the SPBS operation on her non-scheduled day,
and that she was the only employee assigned to sweep mail. Complainant
contends that management allowed another employee to leave work early on
that date, and that her supervisor proceeded to give her "a hard time"
because of the poor condition of the SPBS machine, despite her not being
provided any assistance. Complainant alleges that on February 7, 2006, a
management official interrogated her regarding the terms of the settlement
agreement at issue, and stated "who would be stupid enough to sign that
agreement?" Further, complainant contends that beginning on February 16,
2006, management assigned her to report to the 3 Digit Belt, even on days
when she was scheduled to work in other areas as set out in the August 30,
2005 settlement agreement. In its June 9, 2006 FAD, the agency concluded
that it had not breached the terms of 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, we find that the agency breached the terms of the
August 30, 2005 settlement agreement. In his affidavit, the Manager,
Distribution Operations (MDO) acknowledges that he assigned complainant
to work the sweep function at the SPBS operation on her own on February
3, 2006. MDO also stated that, as the result of major operational
changes, complainant can not always be assigned to the LCTS on her
non-scheduled days. We find that these actions are in direct violation
of the plain meaning of the terms of the settlement agreement. Finally,
MDO claims that he has not breached the terms of the agreement at issue,
"but because of operational changes which have caused loss of workload,
loss of personnel and a need to change [complainant's] work schedule,
our agreement can no longer be adhered to." We find, however, that the
agency's failure to comply with the terms of the settlement agreement,
due to operational changes, does, in fact, constitute a breach of the
settlement agreement at issue.
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). Here, because the record shows that complainant's
bid position was abolished on April 8, 2006, and the agency states that
because of operational changes, the terms of the agreement can no longer
be adhered to, we find that specific enforcement of the terms of the
settlement agreement is not possible. Accordingly, we find that the
appropriate remedy in this case is to reinstate complainant's underlying
EEO complaint. Therefore, we reverse the agency's final decision and
remand this matter for further processing in accordance with this decision
and our Order below.
ORDER
The agency is ordered to take the following action within 30 days of
the date this decision becomes final:
The agency will reinstate the complaint filed under Agency
No. 1A-077-0027-05 and begin processing the complaint from the point at
which processing ceased, with appropriate rights being given.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the complaint has been reinstated. A copy of the agency's letter
informing complainant that it was reinstating her complaint shall be
included in the report.
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
March 7, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120064148
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064148