0120093492
04-21-2011
Irene Lucarini, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Irene Lucarini,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120093492
Agency Nos. 1E-853-0017-09, 1E-853-0003-07, and 1E-853-0059-07
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated July 8, 2009, finding that it was
in compliance with the terms of the 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.
ISSUE PRESENTED
The issue presented is whether the Agency breached the settlement
agreement.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Electronics Technician at the Agency’s West Valley facility
in Phoenix, Arizona. The record reveals that on September 16, 2008,
Complainant and the Agency entered into a settlement agreement to resolve
her underlying EEO complaints. The settlement agreement provided,
in pertinent part, that:
(4) It is agreed that the Postal Service will cancel the Notice of
Proposed Adverse Action REMOVAL dated August 11, 2008. Instead,
Complainant agrees to accept a voluntary downgrade to the position
of Electronics Technician (ET) on Tour 3 at the West Valley LDC with
scheduled days off of Thursday and Friday, effective September 13, 2008.
The proposed Adverse Actions Removal and all relating documents will be
removed or not placed in Complainant’s file.
The parties agree that Complainant will remain Supervisor on
Administrative Leave through September 12, 2008. She will then receive
Annual Leave through October 10, 2008. She will then receive Annual
Leave through October 10, 2008. This agreement supersedes the February 5,
2008 settlement agreement as to USPS’s future obligations.
By letter to the Agency dated May 17, 2009, Complainant alleged that the
Agency breached the settlement agreement. Specifically, Complainant
alleged that her personnel file contained a “Disciplinary Notice or
Decision Letter” with the effective date of August 11, 2008, which
should have been removed from her file pursuant to the agreement.
Complainant further alleged that the Maintenance Manager violated the
confidentiality of the agreement by discussing it with a maintenance
craft employee on December 11, 2008. In a letter dated June 11, 2009,
Complainant further alleged that the agreement was breached because the
Agency condoned the same practices that she was demoted for doing in April
2008, including allowing employees to copy answers from other employee’s
examinations; allowing employees to work together on examinations;
offering employees the examination answers and assistance; and instructing
employees to sign off on training they did not receive. Complainant also
requested that her underlying EEO complaint be reinstated.
In its July 8, 2009 FAD, the Agency concluded that it did not breach the
agreement. The decision stated that on June 8, 2009, the Agency removed
the Proposed Adverse Action Removal letter from Complainant’s file.
The decision further determined that the Maintenance Manager did not have
any conversation with craft employees regarding Complainant’s settlement
agreement, but he did provide information regarding Complainant’s
placement when the union requested such information. Finally, the
decision concluded that there was no violation of training guidelines
for the training or falsification of employee training records.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency breached the agreement
because it did not remove the proposed removal letter until eight months
after the execution of the settlement agreement. Complainant further
contends that the Agency decision accepted the Maintenance Manager’s
denial of discussing the agreement with a craft employee without
interviewing Complainant about the matter. The Agency requests that we
affirm its final decision.
ANALYSIS
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. Dep’t of Def., 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. Dep’t 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. U.S. Postal Serv.,
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 cancel a notice to Complainant
of a proposed removal and to remove all documentation concerning the
proposed removal from her personnel file. The Agency acknowledges that it
did not remove the proposed notice until June 8, 2009, over eight months
after the execution of the September 16, 2008 settlement agreement.
Although the agreement does not provide a specific time period within
which the term was to be executed, the Commission has held that the
agency is required to act within a reasonable amount of time. See Gomez
v. Dep’t of the Treasury, EEOC Request No. 05930921 (February 10,
1994); Parker v. Dep’t of Defense, EEOC Request No. 05910576 (August
29, 1991). Here, the Agency removed the notice of proposed removal
from Complainant’s file approximately three weeks after receiving
Complainant’s breach allegation. Under these circumstances, find
that the Agency substantially complied with the agreement by removing
the notice of proposed removal within a reasonable time.
Complainant further argues that the Maintenance Manager breached the
agreement by discussing it with a craft employee. We note that the
settlement agreement does not contain a confidentiality clause that
prohibits management from discussing the existence of the agreement.
Further, Complainant failed to identify the employee with whom the
Maintenance Manager allegedly discussed the terms of the agreement
and the context of the purported discussion. As such, we find that
Complainant failed to prove that the Maintenance Manager’s alleged
conduct violated the terms of the agreement.
Finally, Complainant further alleges that the agreement was breached
because the Agency condoned training practices for other employees that
she was demoted for doing. This claim essentially argues that Complainant
was subjected to disparate treatment when she was demoted in 2008.
We note that in her settled complaint (Agency No. 1E-853-0017-09),
Complainant alleged that she was never given proper training for an
eLearning course, and she was forced to accept a demotion because the
Agency charged her with engaging in the same training techniques that it
later condoned. Complainant cannot now revive her underlying complaint
by again asserting her settled claims. Consequently, we find that the
Agency did not breach the agreement.
CONCLUSION
Accordingly, the Commission AFFIRMS the Agency’s finding that it did
not breach the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 (S0610)
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. 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 (Z0610)
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 21, 2011
Date
2
0120093492
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093492