01A31469_r
05-02-2003
Patricia Buchan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia Buchan v. United States Postal Service
01A31469
May 2, 2003
.
Patricia Buchan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31469
Agency No. 1-H-333-0035-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, issued on November 15, 2002, finding that it was in compliance
with the terms of an August 2, 2001 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The August 2, 2001 settlement agreement provided, in pertinent part, that:
(A) Complainant shall provide the [agency] with medical documentation
indicating the number of hours she may be in the same building with
[Person A].
(B) [The agency] shall provide a position to the complainant within her
medical restrictions provided that the documentation noted in paragraph
A indicates an overlap of at least one hour. The position will be at
the South Florida facility.<1>
On February 28, 2002, complainant contacted the EEO office alleging
that the agency breached the settlement agreement and requesting that
the agency implement its terms. Specifically, complainant alleged that
on February 15, 2002, management told her to end her tour and go home,
because agency managers stated that they did not have any more work for
her to do.
In its November 15, 2002 decision, the agency concluded that the
settlement agreement was not breached. The agency determined that
complainant was provided with work within her medical restrictions.
The agency stated that her release from duty was "predicated solely
upon the fact that there was no work within [complainant's] medical
restrictions" and that during the relevant time the managers were unaware
of the agreement or its specific terms. Further, the agency noted that
the settlement agreement did not include a guarantee of work hours nor
"negate management's ability to maintain efficiency of operations in
directing its personnel."
On appeal, complainant argues that it was the agency's responsibility
to notify all necessary parties to ensure compliance with the terms of
the agreement. Complainant requests that her complaint be reinstated.
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 O 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).
The August 2, 2001 settlement agreement required the agency to
" . . . provide a position to the complainant within her medical
restrictions . . . ." The record shows that complainant was initially
placed in such a position; however, approximately six months later
she was told to end her tour of duty. The Commission finds that the
agency breached the agreement when it sent her home on February 15,
2002. We are unpersuaded by the agency's assertions that the instant
settlement agreement was not breached, as responsible management officials
were unaware of the specific settlement terms. We agree instead with
complainant's contentions on appeal, that the individuals involved with
executing the settlement provisions should have been informed about
the specific terms. We find that the agency failed to comply with the
settlement agreement when it sent complainant home in February 2002.
Therefore, for the reasons set forth above, we find that the agency
breached provision (B), and its finding of no breach of that provision is
REVERSED. However, given that the agency appears to have substantially
complied with the other provisions of the settlement agreement, including
the payment of a cash award of $2,500.00, we find that equitable
considerations mandate that the appropriate remedy in this case is for
this matter to be REMANDED to the agency for specific enforcement of
provision (B) in accordance with the ORDER below
ORDER
Within thirty (30) calendars days of the date this decision becomes
final, the agency shall implement the terms of the settlement agreement
as follows:
The agency shall provide complainant a position within her medical
restrictions at the South Florida facility, in accordance with provision
(B).
Documentation of specific enforcement shall be sent 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
May 2, 2003
__________________
Date
1The settlement agreement also provided that complainant would not
be supervised by a named agency official; that a step increase would
be granted; that sick and annual leave would be restored; and that
complainant would be paid $2,500. Those provisions are not at issue in
the instant appeal