Terri Webb, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionOct 8, 2010
0120090878 (E.E.O.C. Oct. 8, 2010)

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