0120121057
08-05-2013
Michelle R. Okazaki, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Michelle R. Okazaki,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120121057
Agency No. 1F-953-0003-11
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated November 22, 2011, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this breach claim, Complainant worked as a Maintenance Operations Support Clerk at the Agency's Stockton Processing and Distribution facility in Stockton, California.
On February 3, 2011, Complainant and the Agency entered into a settlement agreement to resolve an EEO complaint. The settlement agreement provided, in pertinent part, that:
(1) [The Maintenance Manager] will contact Johnson Controls regarding upgrading existing cameras to existing system with audio and visual capabilities in Tools and Parts. Additionally, [the named official] will contact Johnson Controls regarding installing a badge reader on the doors that lead to Tools and Parts. This will be done by 2/10/11.
(2) [The Maintenance Manager] will obtain quotes from three vendors for new doors and latch pins. She will contact them by 2/10/11.
. . .
(3) [The Maintenance Manager] will communicate with [the supervisor] who will request [the location of] maintenance personnel on Tour 1;
(5) [The Maintenance Manager] will . . . provide to [the supervisor] a statement directing [a named employee] to stay away from Complainant; and
(6) If [Complainant] feels a concern, she will report immediately in writing (within 48 hours) and email [named managers] the concerns to be investigated.
By written Notice, dated August 23, 2011, Complainant alleged that the Agency was in breach of the settlement agreement, and she requested that the Agency reopen the complaint. Specifically, Complainant alleged that the Agency failed to comply with items #1, #2, #4, #5, and #6.
With regard to item #1, Complainant asserts a breach because the badge readers had not been purchased or installed.
For item #2, Complainant maintains that the task was incomplete because the doors were replaced without latch pins for security.
For item #4, Complainant acknowledged that the task was completed, but she maintains that the Agency was not providing appropriate disciplinary action to another employee and was not holding the other employee accountable.
Regarding item #5, Complainant maintains that the other employee should be moved to another tour (at the other employee's expense) and that the Agency should meet with the union to assure this is possible.
Item #6, Complainant maintains that that the Agency was not doing enough to grant Complainant's request for a Threat Assessment Team that she requested two days earlier.
For all of these reasons, Complainant alleged the Agency breached the agreement and requested that her EEO case be reopened, given the statements made to her by management to the effect that the Agency was not able to provide the relief she wanted.
In its November 22, 2011 FAD, the Agency found that it complied with the terms of the Agreement and determined that Complainant's underlying complaint would not be reinstated. Specifically, the Agency stated that the Manager made the contact with Johnson controls,1 obtained quotes from the vendors, communicated to the supervisor that all maintenance employees on Tour 1 will have to report through the supervisor, drafted a stay-away letter for the employee at issue, and adequately responded to Complainant's concerns by offering her a detail which Complainant accepted.
This appeal followed.
ANALYSIS
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).
We find that the Agreement is valid and had been knowingly and voluntarily entered by the parties.
In the instant case, the parties agreed that management would contact Johnson Controls regarding upgrading existing cameras to existing system with audio and visual capabilities. That Contact was made. Additionally, the named official contacted Johnson Controls regarding installing badge readers on the doors that lead to Tools and Parts and she obtained quotes from vendors. Similarly, the agreement required that a named official communicate to another management official who would request the location of maintenance personnel on Tour 1. This was done. Nothing in the Agreement required the Agency to purchase any specific equipment, reassign any other employees or to carry out threat assessments. In this case, therefore, we find that the Agency did not breach the Agreement.
We note that Complainant appears to raise new concerns issues with regard to incidents that occurred in December of 2011, which were beyond the scope of the February 3, 2011greement. To the extent that Complainant is raising new issues of claims that were not covered by the terms of the Agreement, she would need to timely bring those matters to the attention of an EEO counselor.
Accordingly, we AFFIRM the Agency's letter of determination, finding no breach.
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 tends 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
August 5, 2013
__________________
Date
1 The Manager stated that the quote for the requested work from Johnson Controls was too expensive ($17,000) so management installed cameras themselves.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120121057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121057