01a42603
04-06-2005
Marchel Ellis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marchel Ellis v. United States Postal Service
01A42603
April 6, 2005
.
Marchel Ellis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42603
Agency No. 4K-210-0116-03
DECISION
Complainant filed an appeal with this Commission from a March 5, 2004
agency decision. In its decision, the agency stated that because the
terms of the November 7, 2003 settlement agreement violated the National
Agreement, it was rescinding the settlement agreement.
The settlement agreement provided as follows:
1. The parties will strive to better communication.
2. The parties require mutual respect as co-workers.
3. Carriers will be promptly notified of new procedures regarding nixie
mail[,] loop mail[,] etc. [Complainant] can coordinate with [Person A.]
4. There will be regular stand-up talks re: new procedures and to
highlight problems with nixie mail. Supervisors will identify areas of
concerns and suggest followup will occur with [complainant].
5. [Complainant] will do orientation with new carriers after their
initial 90 days.
6. Supervisors will cooperate with [complainant] and conversely to
develop a "team attitude"[.]
7. Nixie mail questions to be directed to [complainant] with
instructions that [complainant] has authority to implement and instruct
per regulation.
8. No retaliation will be tolerated against [complainant] regarding
this or any other complaint[.]
9. There will be followup by [the Postmaster] with [Person B] regarding
award recognition.
10. [Complainant] will be paid 2 hours of overtime at the next pay cycle.
The settlement agreement also provided that:
If the terms of this agreement are determined to violate a provision of
the applicable collective bargaining agreement, this agreement will be
null and void. In the event that this agreement becomes null and void,
the complainant will be allowed to either renegotiate the terms of this
agreement to be in compliance with the collective bargaining agreement
OR to reinstate his or her complaint.
In a letter dated December 10, 2003 to the agency, complainant alleged
that the agency was in breach of paragraphs 5, 9, and 10 of the settlement
agreement. Regarding paragraph 5, complainant alleged that she was
told by the Postmaster that the agency would not honor paragraph 5.
Complainant noted that she had been performing orientation of new
carriers on an "ad hoc" basis until then. Regarding paragraph 9,
complainant stated that there was to be followup regarding monetary
award recognition. Concerning paragraph 10, complainant stated that
two pay cycles had passed and she had not received her overtime pay.
In its decision nullifying the settlement agreement, the agency stated
that Article 3 of the National Agreement between the agency and the
union provided that the employer shall have the exclusive right to
direct employees in the performance of official duties. The agency
also stated complainant's complaint was reinstated for processing.
The agency did not address its alleged breach of paragraphs 9 and 10 of
the settlement agreement.
On appeal, complainant asserts that the agency failed to comply with
all of the provisions of the settlement agreement and that the agency
had negotiated in bad faith. Complainant asserts that the terms of the
settlement agreement do not violate the collective bargaining agreement,
noting that both complainant's supervisor and the Postmaster signed the
settlement agreement. She further asserts that she had been providing
explanations to new carriers on the handling of nixie mail for some time
when questions or problems had arisen and that the settlement agreement
created a means of handling questions concerning nixie mail before
problems arose.<1> Complainant also asserts that she does not direct
carriers or anyone else as to how to perform their jobs and only tells new
carriers what procedures are in place for the handling of certain kinds of
problem mail, the same as she has always done and that, therefore, she is
not usurping the role of complainant's supervisor. Regarding paragraphs
9 and 10, complainant asserts that two pay cycles passed and complainant
did not receive overtime pay and that nothing was done concerning the
monetary award for complainant. Complainant indicated that complainant
had received the overtime pay and received only a $50 gift certificate
instead of a cash award of up to $250 for the implementation of her ideas.
On appeal, the agency stated that paragraphs 4 through 7 of the settlement
agreement were in violation of the National Agreement and indicated that
it was reinstating the complaint.
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 settlement agreement contains a provision
that would nullify and void the settlement agreement when the terms of
the agreement are determined to violate provisions of the collective
bargaining agreement. The agency determined that the terms of the
settlement agreement violated its National Agreement and indicated that it
had reinstated the complaint. In the instant case, however, the agency
has failed to provide evidence regarding the National Agreement and/or
the provision of the collective bargaining agreement that the settlement
agreement has purportedly violated.
Accordingly, the agency's decision is VACATED and this matter is REMANDED
to the agency for further processing consistent with the Order below
and applicable regulations.
ORDER
The agency shall supplement the record with the relevant portions of
the National Agreement that would purportedly be violated by provisions
contained in the November 7, 2003 settlement agreement. The agency shall
provide an explanation in the form of affidavits from appropriate agency
officials explaining how the National Agreement would be violated by the
agency's compliance with terms of the settlement agreement. Thereafter,
the agency shall issue a new decision determining whether the settlement
agreement has been breached or is void because it violates the National
Agreement. The supplementation of the record and issuance of a new
decision must be completed within thirty (30) calendar days of the date
that this decision becomes final.
A copy of the new decision 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 (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
April 6, 2005
__________________
Date
1In her brief on appeal, complainant defined
"nixie" and "loop" mail as "misdirected" and "problem" mail.