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

Equal Employment Opportunity CommissionMar 30, 2009
0120070916 (E.E.O.C. Mar. 30, 2009)

0120070916

03-30-2009

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


Berta E. Joseph,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120070916

Agency No. 4G-760-0083-00

DECISION

After the agency failed to respond to complainant's breach claim,

complainant filed a timely appeal to the Commission on December 4, 2006

in which she alleged that the agency breached the February 22, 2002

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:

[Complainant] will be reinstated to the position of part-time flexible

clerk or mail handler in the Fort Worth District (Fort Worth city) subject

to the next approved vacancy providing [complainant meets] all employment

requirements (drug screen, criminal checks, and physical). [Complainant]

also understand[s] that [she] will serve a new 90-day probationary period

from the effective date of reinstatement. There is no back pay involved.

In a letter dated October 7, 2003, complainant alleged that the agency

breached the agreement by failing to reinstate her to the position of

part-time flexible clerk or mail handler by October 2003. The agency

issued a decision on October 10, 2003 in which it concluded that it

had not breached the agreement because it had not hired any clerk and

mail handlers since the signing of the settlement agreement because of

repositioning and excessing. In an appellate decision, the Commission

found that the record was inadequate to determine whether the agency had

complied with the agreement. Berta E. Jackson v. United States Postal

Service, EEOC Appeal No. 0120040668 (April 8, 2004). The Commission noted

that the record contained a list of persons on which complainant appeared

to be the third "approved" entry, but the list was not accompanied by

any narrative or explanatory statement signed by an appropriate agency

official to corroborate the agency's conclusions regarding the hiring

of part-time mail handlers and clerks since the date of the settlement

agreement.

On May 3, 2004, the agency issued a notice of compliance addressed to

the Commission in which it stated that a Human Resources Specialist

determined that no approved vacancies have arisen since the execution

of the agreement. The agency further stated that an individual who was

placed into a mail handler position was selected and offered the position

in January 2002, prior to the signing of the settlement agreement.

The record was also supplemented with an affidavit from the Human

Resources Specialist in which the Specialist stated that complainant

was third on a list of persons to be placed into a part-time flexible

clerk or mail handler.

By letter to the agency dated July 27, 2006, complainant again alleged

that the agency breached the settlement agreement and requested that

the agency specifically implement its terms. Specifically, complainant

alleged that although she was reinstated as a part-time flexible clerk

on March 8, 2006, the agency hired several new part-time flexible mail

handlers and clerks before she was reinstated. Complainant stated that

the mail handlers hired before she was hired will have bidding seniority

over her for future assignments and requested that the agency pay her

back pay and benefits retroactively to the date the first mail handler

or clerk was hired after the execution of the settlement agreement.

When the agency did not respond to complainant's breach claim, complainant

appealed the matter to the Commission. In her appeal statements,

complainant reiterates the assertions contained in his breach notice.

The agency inexplicably contends that its "position remains the same

as stated in the final agency decision," although complainant maintains

that the agency has not responded to her breach notice, and there is no

indication in the record that the agency has issued a final decision on

complainant's second breach claim.

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 agency agreed to reinstate complainant into

the next vacant part-time flexible clerk or mail handler position in the

Fort Worth District. Complainant maintains that she was reinstated as a

part-time flexible clerk on March 8, 200, but the agency hired several new

part-time flexible mail handlers and clerks before she was reinstated.

On appeal, complainant submits a Human Resources seniority roster for

part-time flexible mail handlers at the Fort Worth Post Office. The list

indicates that 25 people have a seniority date that is after the date

of the execution of the settlement agreement and before complainant

was reinstated. Thus, in light of complainant's documentation and the

agency's failure to rebut complainant's breach claim, we find that the

agency breached the agreement by failing to reinstate complainant into

the first available vacant part-time flexible clerk or mail handler

position in the Fort Worth District.

To remedy a finding of breach, the Commission may order reinstatement of

the underlying complaint, or enforcement of the agreement's terms. See

29 C.F.R. 1614.504(c). In this case, we find that ordering specific

performance of the agreement is the appropriate remedy in this case.

In this case, we find that this includes not just reinstatement to the

promised position, but also granting complainant the same seniority

date as the first person placed into a part-time flexible clerk or mail

handler position in the Fort Worth District after February 22, 2002.

Accordingly, the Commission hereby directs the agency to take remedial

actions in accordance with this decision and the ORDER below.

ORDER

To the extent that the agency has not already done so, the agency shall

immediately grant complainant the seniority date of the first person

placed into a part-time flexible clerk or mail handler position in the

Fort Worth District after February 22, 2002, including all benefits and

privileges that accrue from the earlier seniority date.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced 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

_March 30, 2009_________________

Date

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0120070916

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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