0120090805
04-14-2009
Gaye M. Bandy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gaye M. Bandy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090805
Agency No. 4F-926-0159-08
DECISION
Complainant filed a timely appeal with this Commission regarding a letter of determination by the agency, finding that it was in compliance with the terms of a May 18, 2008 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The May 18, 2008 settlement agreement provided, in pertinent part, that:
(1) Mgmt will furnish a job description and any other information with regard to the Letter Carrier job to be taken to [Complainant's] physician. This information will be provided at the close of this EEO. Mgmt agrees to issue a new job offer based on new medical documentation to be faxed to Mgmt no later than 3-5 days before her return to work on May 27, 2008.
(2) Mgmt agrees to continue to identify time wasting practices to [Complainant] in an effort to reduce her street time.
By PS Form 2565 "EEO Complaint of Discrimination in the Postal Service" dated September 12, 2008, complainant stated that at the time of the signing of the instant settlement agreement, "it was agreed that I would provide medical documentation to return me to full duties. I provided said documentation and management has refused my return to duty. I believe this is retaliation."
In its unspecified date letter of determination, the agency construed the above referenced complainant as a breach claim regarding the May 18, 2008, settlement agreement. The agency found no breach. The agency stated that an identified agency official conducted an inquiry into complainant's allegations. The agency found that complainant's supervisor (S1) stated that after receipt of medical documentation, S1 obtained clarification of the restrictions through Health Resource Management and after discussing the identified restrictions with complainant, a revised job offer was made based on the restrictions and available necessary work within those restrictions.
On appeal, complainant argues that her supervisor (S1) is using her restrictions "as her reason to restrict me from carrying my mail, and reprisal because I filed an EEO." Furthermore, complainant states that S1 is working "with a vengeance to keep me off the street, with an end result as to tear away enough of my self-esteem to push me into retirement."
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).
The Commission determines that the claims raised by complainant must be construed as a separate complaint, and not as a breach claim. The regulation set forth at 29 C.F.R. � 1614.504(c) provides that claims that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900025 (August 9, 1990) (claim of reprisal or further discrimination in violation of a settlement agreement's anti-retaliation clause to be processed as a separate complaint). Therefore, we find that the agency's decision finding no breach was improper. Complainant's claims are remanded to the agency for further processing as a separate complaint.
Accordingly, the agency's decision is VACATED. The matter raised herein is REMANDED to the agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0408)
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 (K0408)
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 (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
April 14, 2009
__________________
Date
2
0120090805
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090805