01984928
05-06-2000
Mary A. Green, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mary A. Green v. United States Postal Service
01984928
May 6, 2000
Mary A. Green, )
Complainant, )
)
v. ) Appeal No. 01984928
) Agency No. 1-Q-1098-90
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely appealed the agency's decision that denied her claim
that the settlement agreement entered into between the parties had
been breached.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Complainant filed a formal EEO complaint on May 17, 1990, wherein she
claimed that she was discriminated against on the bases of her age (42),
physical disability (carpal tunnel syndrome), and in reprisal for her
previous EEO activity when:
1. She was denied continuation of pay for December 19, 1989.
2. She was denied work on December 20, 1989.
3. She was not allowed to request limited duty.
4. She was made to work below medical capabilities.
5. She was made to work in a draft.
6. She was kept isolated for a full tour.
7. Management made disparaging remarks about her.
8. Management violated the privacy of her Office of Workers' Compensation
Program files.
The complaint was resolved by a settlement agreement entered into on
January 23, 1992. The agreement stated in relevant part as follows:
5. The complainant will be retroactively placed in a clerk/typist
position effective April 22, 1991. However, she will not physically
or actively perform the duties of the position until and unless she
is medically cleared in accordance with Item 6 of this agreement.
Until such time she shall be temporarily assigned duties on tour 2 in
the CFS unit commensurate with her medical restrictions.
6. Complainant to be granted restricted duties based upon medical
assessment performed as follows:
(C) Once the restrictions have been determined then the Employer shall
provide a list of restricted duty assignments commensurate with the
restrictions found in the paragraph above within 30 days. Every effort
shall be made to reassign the complainant within the employee's regular
craft, during regular tour of duty and in her regular facility.
(D) The above procedure and physicians used shall determine what
assignment she is capable of performing without a reasonable probability
of substantial harm based on substantive medical evidence. If based
on this standard, she is found fit to perform clerk typist duties,
she shall be placed into a clerk-typist position within 2 weeks.
8. It is agreed the complainant will not be subject to harassment,
reprisal or discrimination.
By letter dated April 6, 1998, complainant notified the EEO Office that
provisions 6(D) and 8 of the settlement agreement had been breached.
According to complainant, management violated the agreement by removing
her primary job duties and assigning them to another clerk/typist.
Complainant noted that in 1996, pursuant to a grievance, an additional
clerk/typist position was established on tour 2. Complainant stated that
the person who filled this position lost her primary responsibilities
after that individual's direct supervisor left, and was subsequently
assigned complainant's duties. Complainant requested that the agreement
be enforced and that she be given back all of the duties of her position.
In its final decision dated May 1, 1998, the agency determined that
the settlement agreement has not been breached. The agency stated
that complainant's duties and responsibilities have not been altered.
The agency acknowledged that some of complainant's work has been
temporarily reassigned to another employee, but that her scheduled days
off, reporting time, and work assignment have not been altered.
On appeal, complainant contends that on March 23, 1998, the Manager,
Distribution Operations of tour 2 informed her that she is now sharing
the clerk/typist position. Complainant states that the Manager told
he there was not enough work in the Labor Relations Department for two
clerk typists. Complainant notes that the clerk/typist with whom she
now shares the position previously filed a grievance after she lost
her primary duties. According to complainant, the agency settled that
grievance in a retaliatory manner towards her by essentially awarding
her position to the other clerk/typist. Complainant claims that she was
told to give the other clerk/typist her log, files, and everything that
she has developed in her computer for the past five yeas. Complainant
maintains that the other clerk/typist's duties have been clearly defined,
but that her duties have not been defined. According to complainant,
she now does the work that the other clerk/typist does not want to do.
Complainant argues that the agency's actions constitute a violation of
the eighth provision of the settlement. Complainant requests that her
complaint be reinstated and that she be awarded compensatory damages.
Complainant claims that the agency's violation of the settlement has
caused her to become severely depressed.
In response, the agency notes that in 1996, a second clerk/typist position
was added in the Labor Relations Office, and that this position was
filled by the individual now sharing the position with complainant.
According to the agency, the departure of the Labor Relations Specialist
resulted in an overstaffing of clerk/typist positions. The agency
states that by memorandum dated March 4, 1998, the tour 2 Manager,
Distribution Operations indicated to the Plant Manager that complainant
was in her position based on the settlement of her complaint, and that
excising the other clerk/typist would be in violation of the national
collective bargaining agreement. The agency reiterates its position
that complainant's duties and responsibilities have not been altered,
and that some of her work has been temporarily reassigned to the other
clerk/typist. The agency states that complainant's scheduled days off,
reporting time, and work assignment have not been altered.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
cited as 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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
EEOC Regulation 29 C.F.R. �1614.504(b) provides that 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 action. The complainant may file such an
appeal 35 days after he or she has served the agency with the allegations
of noncompliance, but must file an appeal within 30 days of his or her
receipt of an agency's determination.
The Commission has consistently held that settlement agreements are
contracts between the complainant 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 (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 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, 381 (5th Cir. 1984).
In the instant matter, complainant claimed that the agency breached the
settlement agreement with regard to the provisions dealing with her
being placed into a clerk/typist position, and that she would not be
subject to harassment, reprisal, or discrimination. Complainant claims
that the agency breached the agreement by reassigning her primary job
duties and responsibilities to another clerk/typist. We find that
this alleged action by the agency is not a violation of provision
6(D) in light of the fact that this provision addressed complainant's
placement in a clerk/typist position once she was found fit to perform
such duties. The agreement does not specify what duties complainant
would perform, other than that they would be duties commensurate with
the clerk/typist position. With regard to complainant's contention that
the agency breached provision 8, the Commission has held that a claim
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 Veteran
Affairs, EEOC Request No. 05900225 (August 9, 1990). Moreover, Fed
Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred to
as 29 C.F.R. �1614.504(c)) provides that "[a]llegations that subsequent
acts of discrimination violate a settlement agreement shall be processed
as separate complaints." Consequently, if complainant wishes to pursue
this claim, she is advised to contact an EEO Counselor.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (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:
May 6, 2000
_______________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative,
and the agency on:
DATE
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.