01A04920_r
04-18-2002
Megan Owen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Megan Owen v. United States Postal Service
01A04920
April 18, 2002
.
Megan Owen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04920
Agency No. 4H-335-0015-98
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 31, 2000, finding that it was
in compliance with the terms of the April 29, 1997 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, as follows:
�When [complainant] submits a duplicate 3971 [Request for Notification
of Absence], she will be given a copy after the supervisor approves
or disapproves request. A procedure will be set up similar to the
guidelines in F21. When [complainant] submits a duplicate 3996,
she is to be given a copy after supervisors approval or disapproval.
If the complainant is going onto street duties and has not received the
duplicate 3996 back from the supervisor, she will check with her immediate
supervisor prior to pulling down. If assigned to steward duties instead
of street duties, while not necessary to check with immediate supervisor
prior to pulling down, [complainant] is still entitled to her duplicate
3996 she submitted that day. . . . All supervisors will be advised with
regards to the above and the procedures for submission of 3971 and 3189.
Standing will be given all carriers regarding these policies. It will
be told if they wish a copy of 3971 or 3996, it is their responsibility
to fill out a duplicate.�
The record reflects that on August 30, 1997, complainant completed a
pre-complaint counseling form regarding the April 29, 1997 settlement
agreement. Therein, complainant alleged that the agency breached
the agreement when on August 2, 1997, her supervisor asked her to
complete a �PS Form 3971" as identified in the record, even though she
had already completed a leave slip for her absence on July 31, 1997.
Complainant alleged also that when she was asked to sign the form in
question, she informed her supervisor that �he was violating [her]
previous EEO agreement.� The agency processed complainant's informal
claims regarding the settlement agreement and when her concerns were
not resolved, complainant filed a formal complaint of discrimination on
the basis of reprisal. In a final decision dated December 15, 1997, the
agency dismissed complainant's complaint on the grounds of untimely EEO
Counselor contact after finding that complainant sought EEO counseling
�some 55 days after the incident.�
On appeal, the Commission vacated the agency's decision and remanded
the matter for processing. Specifically, the Commission found that the
agency failed to address complainant's claim that the agency breached
the April 29, 1997 settlement agreement and improperly dismissed the
breach claim for untimely EEO Counselor contact. The agency was ordered
to process the breach claim and to issue a new decision on the issue of
whether it breached the April 29, 1997 settlement agreement as claimed
by complainant. Owen v. United States Postal Service, EEOC Appeal
No. 01982264 (February 23, 2000).
Following the Commission's remand, the agency issued a decision dated
May 31, 2000, finding that it was in compliance with the April 29,
1997 agreement. It is from this decision that complainant files the
instant appeal.
Complainant claims that the agency violated the agreement with respect
to the �PS form 3971" when her supervisor asked her on August 2, 1997,
to sign a leave slip for a prior absence. Complainant indicated that
she had already signed the appropriate form and submitted a duplicate on
August 1, 1997, for her absence on July 31, 1997; however, her supervisor
purportedly refused to sign her form and required complainant to sign
a form 3971 prepared by the time keeper on August 2, 1997, which does
not contain a supervisor's signature or what action was taken. In its
May 31, 2000 FAD, the agency concluded that complainant failed to show
that the agency breached the specific terms of the settlement regarding
the �PS form 3971.� Specifically, the agency determined that complainant
�failed to indicate that [she had ever] requested [her] submitted copy
back from any supervisor and they have refused to comply. . . �
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).
We find that the record supports complainant's claim that the agency
breached the terms of the settlement regarding �PS Form 3971.� A
review of the settlement with respect to �PS Form 3971" reflects that
after submitting a Form 3971, complainant was entitled to receive a copy
of the form upon approval or disapproval by a supervisor. On appeal,
complainant indicates that on August 2, 1997, her supervisor refused
to sign the duplicate form she submitted and instead, required her
to sign another Form 3971 prepared by the timekeeper which did not
contain a supervisor's signature or indicate what action was taken.
Complainant has demonstrated that actions of her supervisor on August
2, 1997 with respect to Form 3971 violated the terms of the April 29,
1997 settlement agreement.
Accordingly the agency's decision is REVERSED, and the case is hereby
REMANDED for further processing in accordance with this decision and
the Order below.
ORDER
The agency is hereby ORDERED to specifically implement the terms of the
April 29, 1997 settlement agreement. Such enforcement shall include,
within thirty calendar days of the date that this decision becomes final,
a compilation of evidence from the date that the settlement agreement went
into effect reflecting that complainant has been provided a duplicate
�PS Form 3971" after her supervisor has approved or disapproved a
leave request. The agency shall provide documentation of the specific
enforcement of the subject agreement 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 18, 2002
__________________
Date