01980830_r
03-25-1999
Lois W. Shoemaker, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lois W. Shoemaker, )
Appellant, )
)
v. ) Appeal No. 01980830
) Agency No. 4F-913-1068-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On November 1, 1997, appellant filed a timely appeal with this Commission
from an October 24, 1997 final agency decision. In its final decision,
the agency determined that it did not breach the settlement agreement
and, accordingly, denied appellant's request to reinstate her complaint.
See 29 C.F.R. ��1614.504, .402(a); EEOC Order No. 960, as amended.
The record contains a Settlement Agreement, fully executed on July 19,
1996, which reflects, in pertinent part, that: (1) appellant would
be given equal consideration for overtime opportunities commensurate
with all part time flexible employees; (2) appellant would be given
equal consideration for job assignments commensurate with all part time
flexible employees, with full consideration being given to job skills and
abilities without regard to gender; and (3) appellant would receive 12
hours of overtime pay. In exchange, appellant agreed not to institute
a lawsuit and to withdraw her request for a hearing.
A September 8, 1997 EEO Request for Counseling reveals that appellant
alleged that two men received overtime for September 8, 1997, and that
this practice was ongoing. She further alleged that only men were
allowed to report to work early and that men received night differential
and overtime. The agency treated appellant's EEO Request for Counseling
as a notice of an alleged breach of the settlement agreement.
In its final decision, the agency determined that it had not breached the
agreement. The agency noted that appellant's medical restrictions limited
her to working four days every other week and that the restrictions
precluded her from receiving the same amount of overtime work as other
employees. The agency further noted that appellant was afforded overtime
work when it was needed and when she was available to work overtime.
EEOC Regulation 29 C.F.R. �1614.504 provides that any settlement agreement
knowingly and voluntarily agreed to by the parties shall be binding on
both parties. The regulation further provides that if the complainant
believes that the agency failed to comply with the terms of the settlement
agreement, the complainant shall notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point that processing ceased. The agency shall resolve the
matter and respond to the complainant, in writing. If the agency has not
responded to the complainant, in writing, or if the complainant is not
satisfied with the agency's attempt to resolve the matter, the complainant
may appeal to the Commission for a determination as to whether the agency
has complied with the terms of the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts
between appellant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
Appellant's allegation that she was not considered for overtime
on September 8, 1997, constitutes a claim that a subsequent act
of discrimination violated the settlement agreement. Accordingly,
we find that the agency improperly processed appellant's allegation
as a breach allegation, rather than as a new complaint. Under EEOC
Regulation 29 C.F.R. �1614.504(c), an allegation that a subsequent act
of discrimination violates a settlement agreement is properly processed
under 29 C.F.R. �1614.106, not as a breach of a settlement agreement
under �1614.504(c). In addition, it also appears that appellant may
be raising issues of discrimination regarding the agency's application
of night differential and reporting hours. Therefore, we shall remand
these matter to the agency for further processing in accordance with 29
C.F.R. �1614.106.
The agency's final decision is VACATED and the matter is REMANDED to
the agency for further processing in accordance with this decision and
the applicable regulations.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall notify appellant of the opportunity to meet with an EEO
Counselor to clarify her allegations. Appellant shall have fifteen (15)
calendar days from the date of receipt of the agency's notice within
which to contact the Counselor;
If appellant elects to pursue her allegations, the agency shall continue
processing her allegations in accordance with the applicable regulations.
A copy of the agency's notice to appellant of the opportunity to
meet with an EEO Counselor must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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:
March 25, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations