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