0120072766
01-22-2009
Jacqueline A. Ramsey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Jacqueline A. Ramsey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120072766
Agency No. 4F-852-0092-06
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 26, 2007, finding that it was
in compliance with the terms of the May 24, 2006 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 no radios will be operated in the carrier
annex (1946 Lakeside Dr.) effective 5-30-06 (with the exception of
personal listening devices with headphones as listed below #3).
(2) Management will give a standup by 5-30-06, advising all employees
that radios will no longer be allowed, as stated above.
(3) Management will give a standup, by 5-30-06, advising all
employees that they will be allowed to use personal listening devises
with headphones so long as they comply with applicable U.S.P.S. safety
policies and regulations.
By letter to the agency dated January 11, 2007, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that on December 22, 2006, she heard loud radio
music playing from a boom box over the public address system at
the carrier annex as she arrived at work at approximately 7:10 a.m.
Complainant further alleged that she asked a supervisor to turn the
music off, but the supervisor refused and stated that complainant was
"ruining everyone's Christmas." Complainant stated that the music was
not turned off until approximately an hour after she arrived at the annex.
Complainant also alleged that on December 30, 2006, a co-worker operated
a boom without headphones.
In its April 26, 2007 FAD, the agency concluded that it did not breach
the agreement. Specifically, the FAD stated that the Postmaster
maintained that the employees at the carrier annex had Christmas music
playing until approximately 7:35 a.m., but complainant arrived to
work on that date fifteen minutes before her 7:30 a.m. starting time.
The FAD stated that the Postmaster maintained that after complainant
complained about the music, the music was turned off at approximately
7:35 a.m. Regarding the December 26, 2006 incident, the FAD stated
that the Postmaster maintained that a coworker merely forgot to turn off
his personal radio when he returned to the office from delivering mail,
but the employee was immediately instructed to turn the radio off when
complainant complained about the matter.
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 that no radios would be played
in the workplace without personal headphones. Both complainant and
the agency agree that a radio was openly playing music for at least
several minutes in the workplace on December 22, 2006. Although the
agency contends that this violation of the agreement should be excused
because complainant was not scheduled to work at the time the radio was
operated, we determine that the agreement bans radios from being played
without personal headphones at all times. Thus, we find that the agency
breached the settlement agreement by allowing a radio to be played openly
on December 22, 2006.
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). In this case, we determine that reinstatement
of complainant's underlying EEO complaint is the appropriate remedy.
CONCLUSION
Accordingly, the Commission REVERSES the agency's finding of no breach
and REMANDS this matter to the agency for processing consistent with
the order below.
ORDER
The agency is ordered to take the following actions within thirty (30)
calendar days of the date this decision becomes final:
The agency will reinstate the complaint filed under Agency
No. 4F-852-0092-06 and begin processing the complaint from the point
at which processing ceased, with appropriate rights being given in
accordance with 29 C.F.R. � 1614.108. At the same time, the agency shall
acknowledge to complainant that it has reinstated and resumed processing
of complainant's complaint.
A copy of the agency's letter of acknowledgment notifying complainant
of the reinstatement of his complaint must be sent to the Compliance
Officer 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
__January 22, 2009________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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