Staci E. Clarke, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 14, 2008
0120081089 (E.E.O.C. Mar. 14, 2008)

0120081089

03-14-2008

Staci E. Clarke, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Staci E. Clarke,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120081089

Agency No. 1E-991-0009-07

DECISION

Complainant filed a timely appeal with this Commission from a letter of determination by the agency dated November 1, 2007, finding that it was in compliance with the terms of the September 12, 2007 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 September 12, 2007 settlement agreement provided, in pertinent part, that the agency agrees to:

(2) Training to be offered for Kennewick schemes:

(a) Updated maps of scheme location to be provided by Oct. 1, 2007.

(b) Trainer to be trained by Oct. 1, 2007.

(c) Upon completion of (a) and (b) above, a deferment letter will be issued no later than Oct. 1, 2007.

(3) Upon completion of training, compensation for training hours will be paid at the appropriate rate.

(4) Upon completion of training, detail opportunities will become available.1

By letter to the agency dated October 11, 2007, complainant claimed that the agency was in breach of provisions (2) - (4). Specifically, complainant stated "as of this date October 11, 2007, there has been a breach in the settlement agreement because number 2A and B have not been met, which then creates a breach in 2C, 3 and 4." Complainant further claimed that because the Plant Manager (PM) breached the instant agreement, "I will lose the majority of the opportunities that I should have had had she complied with the agreement."

In its November 1, 2007 letter of determination, the agency found no breach. The agency determined that the PM stated that in regard to provision (2), attempts were made to have the training and the maps completed by October 1, 2007; however, due to a death in the trainer's family, delays occurred. The PM stated that management outlined the delays and provided complainant with a letter reflecting the change. Regarding provision (4) (detail opportunities will become available), the PM rejected complainant's assertion that she missed such opportunities, and that "completion of said work is not limited and will go on for an extended period." Specifically, the PM stated the training and the detail opportunities were provided to assist complainant in obtaining a bid position.

The record contains a copy of the PM's letter dated September 28, 2007 to complainant. Therein, the PM informed complainant that the training scheduled for October 1, 2007 would not take place "due to availability of the trainer in Spokane. This training has; however, been set up for October 17 and 18 in Spokane with [a Spokane trainer] traveling to Pasco on October 19 for onsite familiarization." The PM further stated that "the status of the maps is that Management has received the maps for Pasco from Operations Support and is working on attaining maps for Kennewick, in the interim [Postmaster] has maps being annotated with the Kennewick scheme for reference."

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 record in this case contains insufficient evidence for the Commission to determine whether a breach of provisions (2) - (4) of the instant settlement agreement has occurred. Specifically, the Commission determines that the agency's letter of determination finding no breach is predicated upon review of the record and statements by the PM as discussed above. However, the record contains no affidavit from the PM indicating that the agency fulfilled its obligations under the terms of the settlement agreement. Given this lack of evidence, we are unable to ascertain whether the agency complied with the settlement agreement.

Accordingly, the agency's finding of no breach of provisions (2) - (4) of the September 12, 2007 settlement agreement is VACATED. The matter is REMANDED to the agency for further processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to take the following action:

The agency shall supplement the record with evidence clearly showing that it has complied with provisions (2) - (4) of the September 12, 2007 settlement agreement. The supplementation of the record shall include any documentation, such as an affidavit from the PM, indicating that complainant was provided with updated maps of scheme location (provision (2)(a)); indicating the training took place on October 17 and 18, 2007 as indicated in her September 28, 2007 letter to complainant (provision (2)(b)); whether a deferment letter was issued following complainant's training (provision (2)(c)); whether complainant was compensated for training hours (provision (3)); and whether complainant was provided detail opportunities following completion of the subject training (provision (4)). Within thirty (30) calendar days of the date this decision becomes final, the agency shall issue a new decision concerning whether it breached provisions (2) - (4) of the September 12, 2007 settlement agreement.

A copy of the agency's new decision must be sent to the Compliance Officer as referenced herein.

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

March 14, 2008

__________________

Date

1 The settlement agreement also provides for the agency to pay complainant the lump sum of $1,500. This provision is not at issue in the instant appeal.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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