01A02356_r
07-10-2002
Holly L. Gage, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Holly L. Gage v. United States Postal Service
01A02356
July 10, 2002
.
Holly L. Gage,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02356
Agency Nos. 4G-720-0115-98 & 4G-720-0163-98
DECISION
Complainant filed a timely appeal with this Commission regarding an
agency determination finding that it was in compliance with the terms
of a May 6, 1999 settlement agreement. 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) The post office agrees to provide a clerk position in the Newark post
office with 8 hours on Saturday and 38 hours guaranteed per week with
Sunday and Monday off. If responsibilities at the Newark Post Office do
not produce the 38 hour guarantee and if [complainant] desires additional
hours it will be her responsibility to call the Batesville postmaster
for sufficient hours to make up the weekly guarantee. Start May 10, 1999.
(2) OIC opportunity will be guaranteed within the next 18 months.
By letter to the agency dated December 7, 1999, complainant alleged
that the agency breached provision 1 of the settlement agreement,
and requested that the agency reinstate her complaints. Specifically,
complainant alleged that the agency failed to provide her with 38 hours of
work per week at the Newark Post Office as guaranteed in the settlement.
Complainant claimed that the workload at the Newark Post Office provided
her virtually no opportunity to work 38 hours there. Complainant claimed
she was instead forced to work most of her 38 hours at the Batesville
Post Office where she held a clerk position before entering into the
May 6, 1999 agreement.
Complainant filed the instant appeal on January 18, 2000, claiming
settlement breach of provision 1. Thereafter, on February 10, 2000,
the agency issued a final decision on the issue of breach. In its
final decision, the agency found no breach of provision 1. The agency
determined that the agreement obligated complainant to secure enough
hours to satisfy the 38 hour guarantee provided in the settlement by
contacting the Batesville post office for additional hours short of 38.
The agency concluded that the record failed to support complainant's
allegation that the agency breached provision 1.
The record reflects that while the instant appeal was pending before
the Commission, complainant sent a letter to the agency dated January
27, 2001. Addressing the letter �to whom it may concern,� complainant
indicated that the agency had further breached the settlement by not
providing her an OIC opportunity as stipulated in provision 2 of the
agreement. By letter dated February 21, 2001, the agency's Manager, EEO
Dispute Resolution (Manager) responded to complainant's January 27, 2001
letter. Therein, the Manager noted that the cases that are subject to
the settlement agreement were pending before the Commission, on the issue
of whether the agency breached provision 1 of the settlement agreement.
The Manager stated that it therefore had no authority to take any action
regarding the breach claim of provision 2, dated January 27, 2001.
The agency stated that after the Commission renders a decision on the
issue of breach regarding provision 1, complainant can exercise her
rights �in accordance with that decision and EEOC regulations.�
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 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).
Provision 1
Provision 1 of the settlement agreement contained an affirmative agency
obligation to provide complainant with 38 hours of work at the Newark
Post Office; the agreement further contained an obligation by complainant
to contact the Batesville Post Office for work in the event that the
agency failed to meet the 38 hour guarantee in the Newark Post Office.
Complainant alleges that the agency acted in bad faith in settlement
of her EEO complaints by misleading her into believing that there were
38 hours available at the Newark Post Office. The record contains
no persuasive evidence in the form of affidavits or sworn testimony
establishing complainant's contentions that she was induced by trick or
fraud, or misled by the agency's omission of material facts. For these
reasons we find that complainant has failed to prove misrepresentation
with respect to provision 1 which would void the settlement agreement.
Complainant has also failed to present any evidence that the agency
breached provision 1 of the agreement.
Provision 2
In its January 27, 2001 response to complainant's claim that the
agency failed to provide her an OIC opportunity within 18 months, the
agency indicated that it could not take action on the claim in light of
complainant's pending appeal concerning the agency's alleged breach of
provision 1. The Commission finds the agency's failure to respond to
be tantamount to a finding of no breach of provision 2. The record,
however, does not contain sufficient evidence to allow the Commission
to make an independent determination regarding the agency's alleged
non-compliance with provision 2. Therefore, we shall remand the matter
for a supplemental investigation.
Accordingly, the agency's decision that it did not breach provision 1
of the settlement agreement is AFFIRMED. The agency's decision that it
complied with provision 2 of the settlement agreement is VACATED and
the matter is REMANDED for further processing in accordance with this
decision and the Order below.
ORDER
The agency is ORDERED to take the following action:
The agency shall conduct a supplemental investigation regarding whether it
breached provision 2 of the May 6, 1999 settlement agreement. Thereafter,
the agency shall issue a new decision as to whether it breached provision
2 of the agreement. The agency shall complete these actions within thirty
(30) calendar days of the date this decision becomes final.
A copy of the agency's new decision shall be sent to the Compliance
Officer as referenced herein.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
July 10, 2002
__________________
Date