0120092778
12-07-2009
Audrey B. Summerour, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Audrey B. Summerour,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092778
Agency No. 4H300021308
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 15, 2009, finding that it was
in compliance with the terms of the June 27, 2008 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] will be cross trained including 30045 scheme,
passport, and AMES training within 90 days from today's date;
(2) [Complainant] will actively pursue a transfer to another station.
Management . . . will not oppose or try to hinder the complainant's
desire for transfers.
(3) That both parties will communicate with each other in a dignified,
courteous & [sic] respectful and professional manner in the execution
of their respective duties and responsibilities; and
(4) That [complainant] will not be retaliated against because of her
filing this particular EEO complaint No. 4H-300-0213-08.
By letter to the agency dated March 12, 2009, 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 the agency failed to complete her training in the time
allocated and that the lack of training hinders complainant's ability
to be transferred and therefore amounts to a breach of clause (2).
In addition, complainant sought to file new claims of discrimination
and reprisal that appear to have not yet been addressed by the agency
and are not included in this decision.
In its May 15, 2009 FAD, the agency concluded it had not breached
the agreement. The Manager of Customer Services (RMO) stated that
complainant had completed passport training in March of 2009, was
currently undergoing scheme training and would then take AMES training
upon successful completion of scheme training. RMO further stated that
complainant had not asked her about a transfer. On appeal, complainant
argues that while RMO states that complainant was undergoing scheme
training, in reality the training offer was not made in good faith.
Complainant states that the training required an hour a day, but that
she was only permitted to train intermittently and that she was required
to perform her normal work duties while training, thus interfering with
her ability to learn the materials. Complainant states that she could
have completed the AMES training within the 90-day timeframe set by the
agreement and that the agreement does not state that she must complete
scheme training before taking AMES training.
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).
As regards the allegations of breach in the instant case, we note that
the settlement agreement states that complainant "will be cross trained
including 30045 scheme, passport, and AMES training within 90 days from
today's date" (emphasis added) and the agency does not appear to dispute
complainant's claim that she has not been cross-trained in all three
areas within the 90-day timeframe. While RMO states that complainant
will receive AMES training once complainant successfully completes scheme
training, as complainant points out on appeal the agreement does not
state that the agency has to await complainant's successful completion of
scheme training before commencing AMES training. Because complainant
has not been trained in passport, scheme, and AMES training within the
90-day frame stipulated in the agreement, we find that complainant has
established that the agency breached the agreement. The Commission hereby
remands this case back to the agency to allow complainant the option of
reinstating the underlying EEO complaint settled by the agreement for
continued processing, or for specific performance of the terms of the
agreement in accordance with the Order herein.
We further note that, as regards complainant's allegations of reprisal,
made at the same time as her breach allegations, such allegations should
be addressed separately by the agency, if the agency has not already
done so. For purposes of timeliness, complainant's EEO counselor contact
shall be considered as March 29, 2009, the day she first notified the
agency about her breach and reprisal claims.
ORDER
The agency is ORDERED to contact complainant in writing within thirty
(30) calendar days of the date this decision becomes final and provide
her with the option of requesting either: (1) reinstatement of the
underlyling EEO complaint which was settled by the instant agreement
for continued processing, or (2) specific performance of modified
terms of the settlement agreement by providing complainant with 30045
scheme, passport, and AMES training within sixty (60) days from the date
complainant selects this option. The agency shall provide a compliance
report on its actions as detailed below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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
December 7, 2009
__________________
Date
2
0120092778
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092778