Sharon Ford, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 7, 2003
01A30264_r (E.E.O.C. Oct. 7, 2003)

01A30264_r

10-07-2003

Sharon Ford, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sharon Ford v. United States Postal Service

01A30264

October 7, 2003

.

Sharon Ford,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A30264

Agency No. 4G-760-0137-00

Hearing No. 310-A1-5171X

DECISION

On September 28, 2002, complainant filed an appeal with this Commission

regarding her complaint of discrimination, agency case number

4G-760-0137-00 and regarding the agency's compliance with the terms of

a settlement agreement, dated January 4, 2000, into which the parties

entered.

4G-760-0137-00

In her appeal, complainant states that she is appealing the disposition of

agency case number 4G-760-0137-00. Complainant states that she dismissed

her attorney on August 28, 2002, at the time set for hearing of this

complaint, that she did not give her permission to hold a hearing on

the complaint and that she informed the Administrative Judge (AJ) she

wished to appeal this case.

In the agency's brief, dated November 14, 2002, the agency asserts that

complainant and her representative told the Administrative Judge that

complainant wished to withdraw her complaint.

The Commission observes from the record that on August 28, 2002,

the AJ memorialized by hearing transcript, complainant's withdrawal

of her complaint, (agency case number 4G-760-0137-00) in accordance

with complainant's request to the AJ and as confirmed by complainant's

attorney of record. Complainant has submitted no evidence showing that

she dismissed her attorney prior to the statement by the attorney to

the AJ withdrawing the complaint on August 28, 2002. We therefore find

complainant withdrew her complaint and complainant's appeal regarding

agency case number 4G-760-0137-00 is not properly before the Commission.

January 4, 2000 Settlement Agreement

The settlement agreement provided, in pertinent part, that:

The Barton Manager herein agrees to pay [complainant] 12 hours of pay,

plus mileage, for time missed from her position in August 1999 when she

was required to report to the Postal Service's Medical Unit in Fort Worth.

Both parties agree to cooperate in helping [complainant] return to duty

within the limitations specified by [complainant's physician], in his

April 16, 1999 work limitations form.

[Complainant] agrees to return to duty with the only limitations

being those listed on her April 16, 1999 work limitations form from

[complainant's physician].

The Barton Manager herein agree[s] not to work the Employee outside of

the work limitations outlined in the April 16, 1999 work limitations from

[complainant's physician].

. . .

Both parties agree and understand that the signing of this agreement

is acceptance of the terms herein noted, and that all grievances and

EEO complaints, are withdrawn, and that there will be no documents,

dated prior to January 3, 2000, of any kind, that can or will be used

as disciplinary action against [complainant].

By letter to the agency dated February 1, 2000, complainant alleged

that the agency had assigned her to work that aggravated her injuries

and requesting her status. Additionally, by letter to the agency dated

August 4, 2000, complainant notified the agency that her doctor never

approved the work assignment she was given, that she had never been paid

as agreed (provision 3), that she had been pressured into signing the

agreement and that the agency had breached the settlement agreement.

We deem the agency's failure to respond to complainant's notices of breach

to be a determination by the agency that no breach of the settlement

agreement occurred.

On appeal, complainant states again that the settlement agreement of

January 4, 2000 has been breached and she contends the agreement is

invalid based upon mutual mistake and the absence of any approval by an

EEOC Administrative Judge (AJ). Further, complainant claims that she

previously rescinded her signature and that she had informed the EEO

Counselor that the agreement was invalid.

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 finds that complainant has failed to show that she was

subject to duress or was coerced into entering the settlement agreement.

Furthermore, once a settlement agreement is entered into by the parties,

one party may not unilaterally rescind the agreement. Complainant also

has not shown any mutual mistake which would necessitate voiding the

agreement. Therefore, we find that complainant has failed to show that

the agreement should be held void.

As to whether the agency breached the settlement agreement, the Commission

finds that the record is inadequate to determine whether the agency

has complied with the terms of the January 4, 2000 settlement agreement.

we find nothing in the record to confirm that complainant was ever paid in

accordance with provision (3), and whether the complainant was returned

to duty, consistent with the work limitations specified by her physician

(provisions (4), (5), and (6)). Therefore, we shall remand the matter so

that the agency may supplement the record showing whether it has complied

with provisions 3 - 6 of the January 4, 2000 settlement agreement.

Accordingly, we VACATE the agency's determination that no breach of the

January 4, 2000 settlement agreement occurred. We REMAND the settled

matter for further processing as directed herein.

ORDER

Within 30 days of the date this decision becomes final, the agency shall:

Place evidence in the record showing whether it has complied with

provisions (3), (4), (5), and (6), of the January 4, 2000 settlement

agreement.

Issue a decision regarding whether the agency has complied with provisions

(3), (4), (5), and (6), of the January 4, 2000 settlement agreement.

A copy of the new decision 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 (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

October 7, 2003

__________________

Date