01982727_r
06-24-1999
Jo A. Blake, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jo A. Blake, )
Appellant, )
) Appeal No. 01982727
v. ) Agency Nos. 4-E-980-0105-97
) 4-E-980-0052-97
William J. Henderson, ) 1-E-981-1071-96
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On February 21, 1998, appellant timely appealed the agency's final
decision, dated January 26, 1998, which found that the agency did not
breach the terms of the settlement agreement into which the parties
entered. See 29 C.F.R. ��1614.402, .504(b); EEOC Order No.
960, as amended.
BACKGROUND
A review of the record reveals that appellant filed a formal EEO
complaint for Agency Number 1-E-981-1071-96 on November 18, 1996,
alleging that she had been subjected to unlawful discrimination on the
bases of race (African American), color (black), sex (female), and in
reprisal for prior EEO activity. On March 5, 1997, appellant filed a
formal complaint for Agency Number 4-E-980-0052-97, based on race, sex,
and age. Then on May 15, 1997, appellant filed a formal complaint for
Agency Number 4-E-980-0105-97, based on race, color, sex, and reprisal for
prior EEO activity. The agency initially accepted appellant's complaints
for processing, and conducted investigations. Prior to a hearing being
held, appellant and the agency settled the complaints on May 23, 1997.
The settlement agreement provided, in pertinent part, that:
[Appellant] will be reassigned non-competitively to the position of
Operations Support Specialist EAS-16 (OSS), at the new South Sound DDC
effective June 7, 1997. [Appellant] will receive training appropriate
to the position. This is meant to be a good faith offer which will give
[appellant] an opportunity to work in a new facility with new co-workers
and a new manager. . . .
By letters to the agency dated July 31, 1997, August 11, 1997, and August
12, 1997, appellant alleged that the agency breached the settlement
agreement, and asked that her complaints be reinstated. On July 31,
1997, appellant alleged that she had not received SPS training, and
that all of the training she received at a Norman, Oklahoma training
center was irrelevant to her duties. On August 11, 1997, appellant
again asserted that she had not received proper or adequate training
for the position. Appellant claimed that she was not allowed to use
the computers necessary for her OSS position, and thus could not gain
necessary hands-on knowledge. Further, appellant contended that a fellow
employee refused to train appellant. On August 12, 1997, appellant
alleged that her reassignment to an interim Automation Manager position
prevented her from receiving on the job training and experience for her
OSS position.
In its final decision dated January 26, 1998, the agency declined to
reinstate appellant's complaint, finding that it had not breached
the settlement agreement. The agency asserted that OSS employees
normally receive one (1) week of training at the Oklahoma training
center, and three (3) days of hands-on training, but that appellant
received two (2) weeks of training at the Oklahoma training center,
and two weeks of hands-on training. The agency listed the matters
for which appellant received training and noted that although there is
no prescribed curriculum for OSS training, the OSS employee's manager
must decide what training is necessary based on the task-assignments
of each employee. The agency also found that appellant's difficulties
with her position were due to appellant's lack of basic computer skills,
to appellant having missed one day of training in Oklahoma when she
missed a connecting flight, and to appellant not being available to
reinforce her training because of scheduling conflicts with her college
and military reserve commitments.
On appeal, appellant argues that she was denied funding for training
that she requested, and that she was never given task-assignments from
which to determine what training was necessary. Appellant also claims
that the hands-on training listed by the agency only took place after
appellant alleged breach of the settlement, and that it only lasted two
and a half (2 �) days, not two weeks. Further, appellant claims that
although she had no experience with in-plant support issues, the training
that appellant attended in Oklahoma was designed for employees with two
or more years of such experience. Appellant also argues that she was
placed in an interim position with a different schedule that prevented her
from having any contact or hands-on experience with other OSS employees,
and that she was only returned to her OSS position because she alleged
breach of settlement. Finally, appellant contends that she sought help
from outside appellant's district, because no one in her district would
provide appellant with any training.<1>
The record includes a letter from the facility manager, dated November 7,
1997, in which the manager states that he was concerned with appellant's
ability to perform her job because of her lack of computer experience,
because she missed the first day of her scheduled training in Oklahoma,
and because she scheduled military reserve leave for the dates following
her training, when she should have been receiving reinforcement of her
training. The letter asserts that appellant was given two (2) weeks
of hands-on training with an experienced OSS employee to compensate
for the perceived problems. The letter also notes that the manager was
told by an experienced OSS employee that the normal OSS training regimen
entailed one week at the training center in Oklahoma, and three days of
hands-on training. Also included in the record is a memo dated October
22, 1997, in which the facility manager outlined the training appellant
had received, including two weeks in Oklahoma, five-weeks of �hands-on
exposure,� and the hands-on training mentioned above.
The record also contains, however, a memo dated August 12, 1997 from
the facility manager, announcing that appellant was being placed in
an interim Automation Manager position, which would eventually lead to
appellant being placed in her assigned OSS position. The memo explained
that appellant was being placed in the interim position so that she
could gain knowledge of the day to day changes that she would need to
know about in an OSS position.
ANALYSIS AND FINDINGS
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. In addition, 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 (Dec. 9, 1996).
The Commission has consistently held that settlement agreements are
contracts between appellant and the agency, and 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 (Aug. 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 (Dec. 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 present case, the May 23, 1997 settlement agreement between
appellant and the agency required that the agency place appellant in
an OSS position effective June 7, 1997, and that appellant receive
the training appropriate to the position. The Commission notes that
the settlement agreement does not require the agency to provide more
training for appellant than it provides for other OSS employees. Further,
the agreement does not specify certain training courses that appellant
must be given the opportunity to attend, nor does it specify a certain
amount of training that appellant must be given, other than an amount
appropriate to the position.
The record clearly indicates that appellant ultimately has been placed in
an OSS position at the South Sound DDC, and that appellant has received
as much or more training than is normally appropriate for OSS employees.
Accordingly, the Commission finds that the agency complied with the
training requirements of the May 23, 1997 settlement agreement.
Pursuant to 29 C.F.R. s1614.504(b), an agency has 35 days from the
receipt of an appellant's allegation of breach to resolve the matter.
The Commission has consistently interpreted that provision to mean that
an agency has 35 days within which to cure any breach that has occurred.
See Covington v. United States Postal Service, EEOC Appeal No. 01912311
(September 30, 1991). Appellant was placed in an interim position,
and may not have been placed in an OSS position as of June 7, 1997.
However, appellant admits that she was returned to her OSS position
after she alleged breach. Further, appellant also admits that she was
given hands-on training after alleging breach. The agency's failure
to place appellant in an OSS position by June 7, 1997, and failure to
train appellant in a manner consistent with her position would constitute
breach of the agreement, but, the agency cured any breach that may have
occurred by placing appellant in the OSS position and providing her with
hands-on training after she alleged breach. See Covington v. United
States Postal Service, EEOC Appeal No. 01913211 (Sept. 30, 1991).
CONCLUSION
Accordingly, the agency's decision not to reinstate appellant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 24, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1On appeal, appellant also raises
numerous new allegations of continuing reprisal by the agency.
The Commission has held that an allegation of reprisal in violation
of a settlement agreement's "no reprisal" clause is to be processed
as a separate complaint rather than as a breach of the settlement
agreement. Bindal v. Department of Veterans Affairs, EEOC Request
No. 05900225 (August 9, 1990). Additionally, EEOC Regulation 29
C.F.R. s 1614.504(c) provides that "[a]llegations that subsequent
acts of discrimination violate a settlement agreement shall be
processed as separate complaints... ." Appellant must, therefore,
contact an EEO Counselor with regard to any allegation of reprisal
regarding subsequent acts of discrimination.