01A43787_r
10-20-2004
Jamel J. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jamel J. Walker v. United States Postal Service
01A43787
October 20, 2004
.
Jamel J. Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43787
Agency Nos. 1E-853-0027-99 and 4E-852-0107-01
DECISION
Complainant filed an appeal with this Commission regarding the agency's
compliance with the terms of the October 9, 2000 settlement agreement
into which the parties entered.
The Commission notes that complainant's letter to the Commission, in
which she requests enforcement of the settlement agreement, is postmarked
March 22, 2002, and stamped received by the Commission on March 26, 2002.
We deem this document to be both an appeal of the agency's December 10,
2001 final decision in agency case number 4E-852-0107-01<1>, and her
appeal alleging breach of the October 9, 2000 settlement agreement
occurred in agency case number 1E-853-0027-99.<2> By this decision,
we will address both appeals.
Case No. 1E-853-0027-99
The October 9, 2000 settlement agreement (agency case number
1E-853-0027-99) provided, in pertinent part, that:
(5) It is agreed by the parties, that as full and complete settlement
of the above cited complaint, the complainant, is to be rehired as a
Career employee, under the category of Part-time Flexible, subject to
normal pre-hire requirements, which includes a drug test, background
test and pre-employment physical. Upon successful completion of the
pre-hire requirements, the complainant will be rehired into the position
of Distribution Clerk, Level-5, assigned to Primer Schemes A & B, on Pay
Location 184 on Tour-1, with a begin time of 2300 PM. It is agreed that
the complainant will serve a 90-day probationary period. It is agreed
that the effective on-duty date for this rehire will be November 4, 2000.
It is agreed that there is no back pay or further pay or compensation
provisions authorized as a result of this settlement agreement.
On March 19, 2001, complainant contacted the agency's EEO office for the
purpose of enforcing the settlement agreement when the agency failed to
reinstate her to the Part-time Flexible Distribution Clerk position
as agreed in the settlement. Specifically, complainant alleged she
had received a letter dated February 28, 2001, wherein the agency found
that complainant was found to be medically unsuitable for the position
of Distribution Clerk. In the absence of any determination by the
agency regarding complainant's breach claim, we deem the agency to have
determined that no breach of the settlement agreement occurred.
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 the agency's agreement to reinstate
complainant to the Distribution Clerk position described in the October 9,
2000 settlement agreement was conditioned upon complainant's successful
completion of the pre-hire requirements, including the pre-employment
physical. When complainant was found physically unable to perform
the duties of the position, the agency's duty to reinstate complainant
was excused. Therefore, we find no breach of the settlement agreement
occurred.
Case No. 4E-852-0107-01
On July 5, 2001, complainant filed her complaint with the agency alleging
discrimination on the bases of race, color, sex, age, and reprisal for
prior protected activity, when on February 28, 2001, she received a
letter from the agency stating that she was medically unsuitable for
the position of Part-time Flexible Distribution Clerk.
In a final decision dated December 10, 2001, the agency found that
complainant failed to respond to the agency's requests for an affidavit,
and dismissed her complaint pursuant to 29 C.F.R. � 1614.108(c) (sic)
for failure to cooperate.
The regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides for the
dismissal of a complaint where the agency has provided the complainant
with a written request to provide relevant information or otherwise
proceed with the complaint, and the complainant has failed to respond to
the request within 15 days of its receipt or the complainant's response
does not address the agency's request, provided that the request included
a notice of the proposed dismissal. The regulation further provides
that, instead of dismissing for failure to cooperate, the complaint may
be adjudicated if sufficient information for that purpose is available.
Under the circumstances in this case, we find that the agency's dismissal
was improper. Nothing in the record indicates that complainant received
the agency's requests that she furnish an affidavit and indicating
that failure to do so within 15 days would result in dismissal of her
complaint. Therefore, under the circumstances, we find that the agency's
dismissal of complainant's complaint for failure to cooperate is improper.
We AFFIRM the agency's determination that no breach of the October 9,
2000 settlement agreement occurred (agency case number 1F-853-0027-99).
We REVERSE the agency's dismissal of agency case number 4E-852-0107-01
and we REMAND agency case number 4E-852-0107-01 to the agency for further
processing as directed herein.
ORDER (E0900)
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 (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
October 20, 2004
__________________
Date
1The record does not show when complainant
received the agency's final decision in agency case number 4E-852-0107-01.
2The agency processed complainant's breach allegations as a new
complaint, presumably in light of complainant's claim that she was denied
reinstatement because of her disability.