0120090878
10-08-2010
Terri Webb, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Terri Webb,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120090878
Agency No. 1G-721-0050-05
DECISION
Complainant filed a timely appeal with this Commission from the
Agency’s February 25, 2009 letter of determination finding that it was
in compliance with the terms of the March 9, 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 settlement agreement provided, in pertinent part, that:
(1) “[Complainant’s duties] will consist of operating automatic flat
tub lidder, hazmat dispatch, TMS (tray management system), and other
duties as assigned and
(2) [Complainant] will not be harassed by [Agency] management.
By letter to the Agency1 dated December 17, 2008, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested that
the Agency specifically implement its terms. Specifically, Complainant
alleged that her 204B supervisor (AS) continued to harass her and that on
November 30, 2008, management moved her from the agreed-upon assignment
on Sunday nights.
In its February 25, 2009 FAD, the Agency concluded that no breach had
occurred. Specifically, AS denied harassing Complainant and asserted
that management has the right to direct employees in the performance
of the official duties. Additionally, AS affirmed that the settlement
agreement provided that Complainant could be assigned other duties which
meant that she may be assigned duties to meet the needs of the operation.
Further, Complainant’s Tour 1 supervisor (S1) stated that Complainant
was assigned duties in compliance with the settlement agreement. Finally,
S1 noted that AS no longer serves as a supervisor of mailhandlers. As a
result, the Agency concluded that it had complied with the settlement
agreement.
On appeal, Complainant disputes management’s statements and contends
that if AS did not like how she performed her duties, then he should have
instructed her as to how he wanted it done. Further, she alleges that
moving her out of her Sunday night assignment violated the settlement
agreement. Accordingly, Complainant requests that the Commission find
that the Agency breached the settlement agreement.
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. Dep’t of Def., EEOC Request
No. 05960032 (Dec. 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. Dep’t 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. U.S. Postal Serv.,
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 Commission, after careful consideration of the record and the
arguments on appeal, finds that Complainant has not met her burden
of establishing that the Agency breached the settlement agreement.
S1 maintains that when she supervised Complainant, Complainant was
always assigned to duties within her settlement agreement. S1’s
Statement, at 1. In rebuttal, Complainant maintains that moving her
out of the Sunday night assignment violated the settlement agreement.
The Commission notes that the settlement agreement states that the
Agency may assign Complainant other duties. Complainant has not shown
that any of the duties she was assigned on Sunday nights violated the
settlement agreement.
Additionally, Complainant contends that AS continued to harass her by
making comments such as “I didn’t know you were going to make an
eight hour job out of this” and “When are you going to get done?”
The Commission notes that EEOC Regulation 29 C.F.R. § 1614.504(c)
provides that allegations that subsequent acts of discrimination violate
a settlement agreement shall be processed as separate complaints. If
Complainant is claiming that the Agency subjected her to a discriminatory
hostile work environment, she is alleging a new act of discrimination
occurring subsequent to the settlement agreement. As such, Complainant's
claim must be processed as a separate claim of discrimination and not as a
breach of the settlement agreement. Accordingly, the Commission advises
Complainant that if she wishes to pursue, through the EEO process, the
harassment claim raised with the Agency on December 17, 2008, she must
initiate contact with an EEO Counselor within 15 days of receiving this
decision. The Commission advises the Agency that if Complainant seeks
EEO Counseling regarding the new claim within the above 15-day period,
the December 17, 2008 date Complainant raised the claim with the Agency
shall be deemed to be the date of the initial EEO contact.
Accordingly, the Commission finds no breach of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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. 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 8, 2010
Date
1 On December 17, 2008, Complainant sent a letter alleging breach of
the settlement agreement to the EEOC’s Office of Federal Operations
and the Agency. The Agency investigated Complainant’s allegation
upon receipt of the letter and, on February 25, 2009, issued a letter
of determination. Complainant subsequently filed the instant appeal.
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0120090878
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090878