0120131341
06-21-2013
Marion Clausell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Marion Clausell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120131341
Agency No. 1C-431-0015-04
DECISION
Complainant filed a timely appeal with this Commission from a letter of determination by the Agency dated January 29, 2013, finding that it was in compliance with the terms of a February 11, 2004 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
The record reflects that Complainant is allergic to the chemicals used to wax the work room floors in the facility where she was employed during the period at issue. The record further reflects that Complainant had an asthmatic reaction which caused her to go to the emergency room for treatment.
On February 11, 2004, Complainant and the Agency entered into a settlement agreement to resolve a matter that was pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
[Former female Agency official] will write a letter to the Dept. of Labor [named employee] regarding delay of sample of wax to be tested. [Complainant] request a copy of letter from [former female Agency official].
[Former male Agency official] will allow [Complainant] to enter and exit thru firm (word not legible).1 She will notify appropriate supervisor regarding this. He will also look into maintenance of wax area scheduling if possible, and give such schedule to [Complainant].
[Complainant] will notify area supervisor of any respritory [sic] problems that would need medical attention and she may request assistance to a medical center. If emergency transportation is needed it will be called immediately. Payment of emergency squad transportation will be [Complainant's] responsibility.
[Complainant] will consult w/her doctor regarding appropriate mask to wear during work. Such ___ (word not legible) will be made by her doctor to DRAC [District Reasonable Accommodation Committee] members for approval.
[Former male Agency official] will investigate the reasons behind payment & non-payment of Oct 1, 2003 to Oct 31, 2003.
By letter to the Agency dated August 31, 2012, Complainant alleged breach. Specifically, Complainant alleged that on August 14, 2012, the Plant Manager notified her that he could no longer honor the subject agreement, and that she would have to enter through the employee entrance (front doors). Complainant further alleged that as a result of the breach, she has been aggrieved "by additional medical bills, emotional duress, along with loss wages and benefits."
In its January 29, 2013 letter of determination, the Agency found no breach. The Agency stated that according to the Plant Manager, he stated that the subject agreement allowed Complainant to enter the building through a side door. The Plant Manager stated, however, due to security concerns, all employees, including Complainant, must enter the facility through the employee entrance. The Plant Manager further stated that management attempted to work with Complainant on her accommodation request, and that her accommodation request has been sent to DRAC. Moreover, the Plant Manager stated that management provided Complainant with a mask that was recommended by her physician.
Furthermore, the Agency noted that Complainant raised a new claim (denial of reasonable accommodation). Specifically, Complainant alleged that she was discriminated against on unspecified dates in June 2012 or July 2012 and on August 14, 2012, when she was informed that the Agency would no longer accommodate her restrictions. The Agency stated that Complainant's new claim has been processed as a new complaint identified as Agency No. 1C-451-0056-12.
Complainant, on appeal, argues that the Agency improperly found no breach. For instance, Complainant states that the Agency had not established that security concern "entitles it to breach an EEO settlement. As a matter of fact, USPS provided no evidence or proof it has any valid concerns or even what specifically those concerns are."
The record contains a copy of the Plant Manager's affidavit dated January 23, 2013. Therein, the Plant Manager stated that the Agency officials involved in the subject agreement have "since retired. The agreement indicates the employee will be allowed to enter through a side door. Security changes have tightened up over the years in all [government] facilities and requirements implemented. We have since changed the security system which prevents employees from coming through side doors and/or unauthorized doors...all employees are required to enter through the front doors (employee entrance). ... To ensure safety of all employees and have accountability for safety measures all employees are mandated per safety requirements to enter and exit through employee entrance doors."
Further, the Plant Manager stated that during the relevant period Complainant was provided "a list of locations of wax when entering the employee entrance. Employee states she can smell the wax before entry into the facility. Over the years it appears her condition has worsened and the agreement does not work either. Her doctor prescribed a 95 mask which we provided and employee states this will not work. We continue to try to work with employee however we continue to run into concerns above the original agreement." The Plant Manager stated that he referred Complainant's concerns to DRAC to assist her.
The Plant Manager stated that in December 2012, Complainant complained "about waxing yet no waxing was performed in December per [maintenance] Employee is smelling wax before entering facility. We are providing masks and employee states this doesn't work yet this is what her doctor wrote as a resolve. Employee is observed without wearing mask she is provided."
The instant appeal followed.
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. 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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
The essence of Complainant's argument is that approximately 8 years and 6 months after the execution of the subject agreement, the Agency is obligated to allow her to enter the facility by a side door instead of the employee entrance (front doors). The Commission has held that in the absence of a specific time frame in a settlement agreement, it is interpreted to be for a reasonable amount of time. Parker v. Department of Defense, EEOC Request No. 05910576 (August 29, 1991) (agreement that did not specify length of service for position to which complainant was promoted was not breached by the temporary detail of complainant two years after the execution of the settlement agreement). In the instant case, the agreement was executed on February 11, 2004, and Complainant alleged breach on August 31, 2012, over 8 years and 6 months later. We note in his affidavit, the Plant Manager stated that security has increased over the years in all government facilities and that all employees are required to enter the facility through the employee entrance (front doors). Under these circumstances, we find no breach.
We recognize, however, that Complainant argues that the agreement is a reasonable accommodation for Complainant's disability. We note in the instant letter of determination, the Agency stated that it has processed Complainant's denial of reasonable accommodation claim as a new complaint (Agency No. 1C-451-0056-12) which is pending.
The Agency's finding of no breach of the instant settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 21, 2013
__________________
Date
1 The Commission notes that the copy of the settlement agreement of record is of poor quality. It is handwritten in the pertinent provisions, though not clearly; has several totally illegible words; and numerous rather confusing portions which are totally or completely crossed out or edited. The Agency is advised to provide a clear, legible copy of settlement agreements in the future to provide for the efficient review of such documents by the Commission, in the event of a breach claim which might again come before us.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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