Patricia E. Cline, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 29, 2005
01a51358 (E.E.O.C. Mar. 29, 2005)

01a51358

03-29-2005

Patricia E. Cline, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Patricia E. Cline v. United States Postal Service

01A51358

March 29, 2005

.

Patricia E. Cline,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A51358

Agency Nos. 4E-800-0126-02 & 4E-800-0161-02

Hearing Nos. 320-2004-00165X & 320-2004-00166X

DECISION

The complainant filed timely appeals with this Commission from two final

agency decisions (FADs) and an agency determination dated, respectively,

October 28, 2004, December 2, 2004, and February 18, 2005 finding that

it was in compliance with the terms of the June 22, 2004 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, that:

(1) The complainant will never be required to work with D.H. (the

manager).

(2) The complainant's record will be purged of any and all disciplinary

action on her record as well as any pending discipline as of June 22,

2004.

By letters to the agency dated September 19, 2004 and October 25, 2004,

the complainant alleged that the agency breached term 1 above of the

settlement agreement. She alleged that the agency failed to keep her

and the manager separated from each other, as intended, and that she

was required to work with him on five specified dates in September and

October 2004 for some hours.

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 settlement agreement also provides that the complainant will never be

required to work on the same shift as supervisor B.J.K. (the complainant

does not contend this term was breached). Notice this language is more

restrictive than the �work with� language applying to the manager. The no

�work with� language does not mean total separation, rather, it means

not directly working with the manager. Here, the record shows that the

manager, who was not normally assigned to work in the complainant's area

on her shift, was called in occasionally to assist the complainant's

supervisor, who was having difficulty running the mail processing

operation. The manager did not work directly with the complainant.

Accordingly, we find term 1 of the settlement agreement was not breached.

In her final notice of breach letter to the agency dated November 12,

2004, the complainant stated that she looked at her file on November 11,

2004 and �the disciplinary action� was still in her record, in violation

of the settlement agreement.

It was written in the agency's letter of determination dated February

18, 2005 that the Officer in Charge of the complainant's facility was

interviewed and stated that he personally removed �the discipline� from

the complainant's official personnel file, that the Deputy Managing

Counsel, Western Area Law Department witnessed this action, and there was

no discipline in any of the complainant's files. The record, however,

does not contain written statements supporting what was written in the

letter of determination. Accordingly, the agency shall take the action

in the order below.

ORDER

An agency Human Resources Specialist or someone whose regular duties

include performing functions normally performed by a Human Resources

Specialist (e.g., personnelist, administrative officer, etc.), or an

agency attorney shall review the files covered by term 2 above of the

settlement agreement and, if there is any discipline therein violating

term 2, purge the discipline. The reviewer shall than complete an

affidavit stating which files were reviewed, the dates of the reviews,

whether any discipline covered by the settlement was found and identifying

it, if any, and confirming that such discipline was purged. The agency

shall complete these actions within 30 calendar days of the date this

decision becomes final.

The affidavit, with a copy to the complainant, must 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 (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 29, 2005

__________________

Date