01A44912_r
10-26-2004
Joyce E. Colin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joyce E. Colin v. United States Postal Service
01A44912
October 26, 2004
.
Joyce E. Colin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44912
Agency No. 4G-700-0027-04
DECISION
Complainant filed appeals with this Commission from two final decisions
by the agency dated April 5, 2004 and July 2, 2004, both finding that
it was in compliance with the terms of the February 6, 2004 settlement
agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) [M1] agrees to notify and consult with [complainant] on decisions
which are her normal responsibility rather than making them unilaterally.
(2) [M1] agrees to assign tasks to [complainant's] department through the
normal chain of command and to allow [complainant] to make selections for
projects and positions within her department subject to [M1's] approval.
(3) [M1] and [complainant] agree to refrain from profanity and/or overt
displays of anger.
(4) [M1] will assist [complainant] in obtaining a lateral or upward
transfer of her choice including marketing.
[M1] will obtain human relations interpersonal skills training as soon
as possible.
[Complainant] will be given an assignment of acting manager a minimum
of once in 2004 during [M1's] absence.
[M1] will request a workplace climate assessment of the Marketing
Department.
By letters to the agency dated March 5, 2004, and May 24, 2004,
complainant alleged that the agency was in breach of the settlement
agreement, and requested that the agency specifically implement its terms.
Specifically, in her March 5, 2004 letter, complainant claimed that M1,
sent a message stating that one of complainant's subordinates would be
visiting stations and branches, beginning February 26, 2004, without
consulting complainant. Complainant also alleged that her selection for
another project was disapproved by M1. Further, complainant alleged that
M1 displayed anger when complainant asked him to sign a Certificate of
Governmental Exemption. Complainant stated that she was not aware that
M1 had completed the human interpersonal relations training or requested
the climate assessment, as required.
Subsequently, in her May 24, 2004 letter, complainant claimed that
M1 continues to assign tasks (on May 7, 11, 14 and 21, 2004) to
complainant's subordinate, without informing complainant in advance.
Complainant also alleged that on Wednesday, May 12, 2004, M1 used the word
�bitch� in referring to the roles of sales and service associates. Again,
complainant alleged that M1 had not completed the training or climate
assessments as required by the settlement agreement, nor had complainant
been afforded the opportunity to act in M1's stead during his absence.
In its decisions of April 5, 2004 and July 2, 2004, the agency concluded
that no breach of the settlement agreement had occurred. The agency
found that operational considerations prevented M1 from consulting
with complainant regarding some tasks he assigned to her subordinates.
Further, the agency found that M1 admitted to using the word �bitch�
in conversation with complainant, but not to refer to her or to another
employee and not intended to be obscene or profane. Lastly, the agency
concluded that M1 has, ultimately, taken the human relations training
and requested the climate assessment required by the settlement agreement.
On appeal, complainant disputes the agency's explanation regarding
M1's need to circumvent and undermine her authority with respect to the
assigning of tasks to her subordinates. Complainant further questions
the facts recited in agency's final decisions and requests proof that
M1 has taken the specified training. Further, complainant states that
M1 deliberately kept her uninformed regarding an award given to one of
her subordinates. Complainant adds that the single occasion where she
was supposedly �acting on M1's behalf� in compliance with the settlement
agreement was at a meeting where complainant was never informed that she
was attending on M1's behalf, unlike the multitude of times when other
employees have been announced as acting as manager during M1's absence.
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 record inadequate to determine if
the agency has breached the settlement agreement. The agency has not
provided the statement from the management official (M1) to which it
refers to in its decision. Furthermore, the agency indicated that M1
has taken the requisite training and requested the climate assessment
described in the settlement agreement without providing any evidence in
the record regarding the type of training M1 received or evidence to
show he requested the climate assessment. Therefore, we shall remand
the matter so that the agency may supplement the record with the evidence
specified in the Order herein.
Accordingly, we VACATE the agency's determination that no breach of the
settlement agreement of February 6, 2004 occurred. We REMAND the matter
to the agency for further processing as specified in the ORDER herein.
ORDER
Within 30 days of the date this decision becomes final, the agency shall:
Provide a statement in the record from the agency official referred to
in the agency decision (M1) addressing the circumstances surrounding the
alleged tasking of complainant's subordinates without her knowledge on the
dates cited in complainant's letters of March 5, 2004 and May 24, 2004.
The statement from M1 should address whether he has complied with all
provisions in the agreement, including whether he used profanity or
displayed anger, whether he consulted with complainant on decisions that
are her normal responsibility, and whether he has given complainant the
assignment of Acting Manager.
Place evidence in the record verifying the human relations interpersonal
skills training received by M1.
Place evidence in the record showing whether M1 requested a workplace
climate assessment.
Issue a new determination regarding the agency's compliance with the
settlement agreement of February 6, 2004.
A copy of the agency's new determination must be sent to the Compliance
Officer as directed 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 (R0900)
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 (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 26, 2004
__________________
Date