0120072368
01-22-2009
Vernell Randle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Vernell Randle,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072368
Agency No. 1F-956-0003-07
DECISION
Complainant filed a timely appeal with this Commission from a letter of
determination by the agency dated April 2, 2007, finding that it was in
compliance with the terms of a November 30, 2006 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The November 30, 2006 settlement agreement provided, in pertinent part,
that:
1.a. [Management Maintenance Operations (MMO)] will address his staff
to ensure that [complainant] will get her 3971 forms and that they will
be properly documented with signatures of supervisor and date notified.
1.b. On a separate space on the form 3971 will be the signature and date
of the supervisor taking official action on the leave request.
2. If [complainant] encounters any problems regarding the 3189 forms,
she can call [MMO] personally and he will address the matter.
3. The 3189 form will be disapproved for business needs only.
4. [Complainant] will be compensated for 5.5. hours of leave.
By PS Form 2564-A "Information for Pre-Complaint Counseling" to the agency
dated February 12, 2007, complainant claimed breach. Specifically,
complainant claimed that she contacted MMO repeatedly because her
supervisors refused to sign her Forms 3971. Complainant stated "each
time [MMO] would tell me he had informed and instructed them concerning
the Agreement." Complainant stated that on January 3, 2007 and February
1, 2007, one of her supervisors refused to initiate Forms 3971 for her
call-in requests for annual leave. Complainant further stated that
on January 16, 2007, one of her supervisor had at least three Forms
3189 for employees "who had not had the Forms signed by a Union Rep.
The Regulations specifically state 'The appropriate Union Steward
must agree to the request BEFORE IT IS SUBMITTED FOR SUPERVISOR ACTION
[emphasis added].'" Furthermore, complainant stated that she has not
yet been compensated for 5.5 hours of leave.
In its April 2, 2007 letter of determination, the agency found
no breach. According to the agency, MMO who was involved in the
settlement negotiations stated that the settlement agreement was honored.
MMO stated that the staff was addressed at least five different times
regarding provisions 1.a., 1.b., 2 and 3 "between 11/15/07 and 3/27/07."
MMO further stated that on March 27, 2007, complainant's Form 2240 Pay
Adjustment was adjusted by an identified supervisor.
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).
In the instant case, the Commission determines that the record in
this case contains insufficient evidence for us to determine whether
a breach of the instant agreement has occurred. We note, for example,
that the agency's final decision finding no breach is predicated upon
statements by MMO. However, the record contains no affidavits from
MMO indicating that he fulfilled the 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 the 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 the settlement agreement. The supplementation
of the record shall include documentation, such as affidavits from
MMO, indicating that the agency was in compliance with the settlement
agreement. Within thirty (30) calendar days of the date this decision
becomes final, the agency shall issue a new decision concerning whether
it breached the November 30, 2006 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 (K0408)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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
January 22, 2009
__________________
Date
2
0120072368
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072368