0120113493
09-11-2012
Annette Smith, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Annette Smith,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120113493
Agency No. 4J530008009
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated May 3, 2011, finding that it was in compliance with the terms of the 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.
BACKGROUND
Complainant is employed by the Agency as a City Mail Carrier at a postal facility in Milwaukee, Wisconsin.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 21, 2009, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) That when I [Complainant] have a concern with how 204B [named person] is treating me, I will report it immediately to the manager [named], and [the manager] will address my concerns within 24 hours unless it is her day[s] off; that [the 204B, [the manager], and [Complainant] will be respectful and courteous when addressing each other. There will be no yelling to [Complainant] across the room floor, and no questioning of [Complainant] by management when [Complainant] is on official breaks.
On March 30, 2011 Complainant alleged that the Agency was in breach of the settlement agreement. In a short statement, dated April 26, 2011, explaining her breach allegation, Complainant stated that the manager named in the agreement came onto the work room floor on February 4, 2011, and yelled and used profanity.
In its May 3, 2011 FAD, the Agency concluded it was not in breach of the agreement. During the inquiry into Complainant's breach claim, the manager provided a statement indicating that on February 4, 2011, she noticed several vehicles at the back dock with their engines running and made an announcement that the vehicles should be turned off. She stated that when she walked past Complainant, she heard her say "she [the manager] has her whip out already." Complainant continued to make similar remarks. As a result, Complainant was called into the office and the manager told her that her remarks were uncalled for and disruptive. When Complainant was alleged to have indicated that the manager could not tell her what to do, she was told to punch out if she was going to disrupt the floor. Based on this statement, the Agency concluded that no breach of the settlement agreement had occurred.
The instant appeal followed. Complainant did not offer any arguments on appeal.
ANALYSIS
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 (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. 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).
In the instant case, the Agency provided a sworn statement from the supervisor explaining what happened on the day in question. To the extent that Complainant made inappropriate comments, the evidence seems to indicate that the manager called her into the office instead of shouting at her across the floor, and there is no indication that she was questioned while she was on her break - part of the terms of the settlement agreement. Merely having a manager address inappropriate comments in her office does not mean there was a breach of the agreement. While Complainant alleges the manager yelled profanities at her, she has provided no evidence in support of that allegation or even provided any detail of the incident.
As such, the Commission finds that there was no breach of the settlement agreement. The Agency's decision on the matter is AFFIRMED.
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
September 11. 2012
__________________
Date
2
0120113493
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113493