01A10563
03-28-2001
Mary Thomas, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mary Thomas v. U.S. Postal Service
01A10563 & 01A10879
March 28, 2001
.
Mary Thomas,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A10563
01A10879
Agency Nos. 1-C-451-0100-00
1-C-451-0008-00
DECISION
On October 26, 2000, complainant timely filed the appeal in EEOC Appeal
No. 01A10563 (appeal 1) with this Commission from an agency decision
(decision 1) dated September 29, 2000, dismissing her complaint of
unlawful employment discrimination brought pursuant to Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Subsequently, on November 10, 2000, complainant timely filed the second
appeal in EEOC Appeal No. 01A10879 (appeal 2) from an agency decision,
dated November 7, 2000 (decision 2) finding that it had complied with the
terms of a settlement agreement that the parties had executed on November
9, 1999. Both parties request that the Commission consolidate these
appeals. Therefore, the Commission exercises its authority to consolidate
these appeals, and accepts them pursuant to 29 C.F.R. � 1614.405.
According to the record, the agency terminated complainant's employment
(a 90-day appointment) on September 7, 1999. Complainant contacted an
EEO Counselor, claiming that her termination was motivated by unlawful
employment discrimination based on disability. The parties agreed to
mediate the dispute, and entered into a settlement agreement on November
9, 1999.
In pertinent part, the settlement agreement provides that:
Complainant's supervisor would replace the old evaluation with a new
evaluation, and to place complainant on rehire status.
We note that the �old evaluation,� dated September 7, 1999, reflected
a recommendation that complainant not be rehired, and rated her
work performance as �poor� for each category except �safety� which
was rated �good.� The �new evaluation,� dated November 10, 1999,
reflected a recommendation that complainant be rehired, but rated her
work performance as �poor� for every category, resulting in a downgrade
in her �safety� rating. The new evaluation further reflected a comment
that the recommendation to rehire was made with reservations, and
that it was �per remediation (sic) Agreement.� The new evaluation was
then �replaced� a year later by a third evaluation, dated November 28,
2000, which recommended, without comment, that complainant be rehired,
and rated her work performance as �good� for all categories. However,
approximately one month prior to this, on October 27, 2000, the agency
rehired complainant for a causal appointment, which was extended on
December 2, 2000.
By letter dated March 27, 2000, complainant notified the agency of her
claim that it had breached the settlement agreement. Specifically,
complainant claimed that the agency had not placed her on the rehire
list, and that her �new evaluation,� constituted an adverse action,
and did not comply with the terms of the settlement agreement. In this
letter, complainant further claimed that the �new evaluation� was an
act of reprisal, given the lowered rating in the �safety� category,
as well as the comment that the recommendation to rehire was made with
reservation, and was the result of a mediation agreement. The letter
requested EEO Counseling and compensatory damages.
According to the EEO counselor's report of record regarding appeal 1,
the agency's EEO office received complainant's March 27, 2000 letter
on May 4, 2000, and initiated counseling on this date. When counseling
was unsuccessful, complainant filed a formal complaint on July 21, 2000,
claiming discrimination on the bases of race, sex, and reprisal regarding
the �new evaluation.�<1>
In decision 1, the agency dismissed the above complaint on the grounds
of failure to state a claim, as well as on the alternative grounds that
it concerned the same matter that was decided or pending in another
complaint�specifically, the EEO complaint that the parties resolved by
the settlement agreement at issue. In decision 2, that agency denied
that it had breached the terms of the settlement agreement, finding
that the �new evaluation� had been replaced with one that complied
with the settlement agreement, and that complainant had, in fact, been
rehired, noting that the settlement agreement contained no time-frame
for accomplishing either of these actions.
The instant appeals followed.
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 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).
Regarding decision 2, we find that the agency ultimately complied with
both of the provisions at issue, namely, complainant was provided with
a positive replacement evaluation recommending that she be rehired, and
she was, in fact, rehired for at least two consecutive appointments.
As noted by the agency, the settlement agreement provided no deadline
regarding either of these actions. While complainant argues that she
interpreted the settlement agreement to mean that she would be hired
in November 1999, we find that such an interpretation should have been
reduced to writing as part of the settlement agreement. Jenkins-Nye
v. General Services Administration, EEOC Appeal No. 01851903 (March 4,
1987). Accordingly, we AFFIRM the agency's determination in decision 2.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the agency shall
dismiss a complaint that fails to state a claim. This same regulation
also provides that an agency shall dismiss a complaint that states the
same claim that is pending before or has been decided by the agency
or Commission.
In decision 1, the agency dismissed complainant's complaint on both
grounds set forth in the above cited regulation. After careful review,
we find that the agency's dismissal as to both grounds was improper.
Here, had the implementation of the �new evaluation� merely been an
ineffectual attempt to comply with the settlement agreement, we would
concur with the agency in decision 1 that this matter was subsumed
in the breach claim. However, because complainant's supervisor used
this settlement provision as an opportunity to lower complainant's
�safety� rating, we view it as an adverse action outside of the
settlement agreement, and so not part of the breach claim. Further,
we find that complainant has stated an actionable claim of reprisal
because the lowered evaluation was associated with her personnel file
for approximately one year, clearly rendering her �aggrieved.� See
Diaz v. Department of the Air Force, EEOC Request No. 05931049(April 21,
1994).<2> Accordingly, we REVERSE the agency's dismissal in decision 1,
and we REMAND complainant's reprisal claim to the agency for processing
as set forth in the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 28, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On appeal, complainant requests that her complaint be amended to clarify
that it is based on reprisal. We interpret this to mean that complainant
is no longer pursuing her complaint on the bases of race and/or sex.
We will construe it accordingly.
2Although not addressed by the agency, we find that this claim is
not rendered moot by the subsequent implementation of an appropriate
evaluation, or complainant's rehiring prior to the �new evaluation� being
replaced, in light of complainant's claim for compensatory damages. See
29 C.F.R. � 1614.107(a)(5);Kuo v. Department of the Navy, EEOC Request
No. 05970343 (July 10, 1998); Hofmann v. Department of the Navy, EEOC
Request No. 05970962 (October 28, 1999).