01A35036_r
02-25-2004
Beverly A. Lopez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Beverly A. Lopez v. United States Postal Service
01A35036
February 25, 2004
.
Beverly A. Lopez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35036
Agency No. 1F-904-0011-02
DECISION
The record reveals that on December 12, 2002, complainant and the agency
entered into a settlement agreement regarding complainant's EEO complaint.
The settlement provided as follows:
Management agrees to institute rotation of employees in this unit to
address the complainant's concerns so long as it does not affect the
reduction of productivity in this unit more than five percent and
to seriously handle any retaliation from certain employees against
complainant and in return complainant agrees to withdraw her complaint
herein in its entirety.
By letter dated February 18, 2003, complainant informed the agency that
her Supervisor had not complied with the settlement agreement and that
she wished to have her complaint reinstated. In a letter dated March 18,
2003, complainant stated that she asked her supervisor on March 10, 2003,
for a partner when she worked on the dumpers, but that her supervisor
responded that she should do the best she can. Complainant stated that
two coworkers always work together on the dumpers even though it's only
a one person assignment for other employees. According to complainant,
a coworker called her a �crybaby� on March 10, 2003. Complainant stated
that this coworker harassed her and the agency did not address the
situation promptly.
By agency decision dated August 5, 2003, the agency determined that it had
not breached the settlement agreement. According to the agency, it has
made every effort to rotate assignments, but that there are occasions
when the rotation does not function well. According to the agency,
the unit meets and exceeds its goals when the two coworkers referenced
by complainant work together unloading vans. The agency stated that
complainant's supervisor has indicated that he is committed to the
settlement agreement and will provide complainant with assistance in
completing her assignments when it is operationally justified and there
is manpower available. With regard to the incident of March 10, 2003,
the agency stated that the Acting Supervisor reported the coworker's
remarks, but that she was unable to meet that day with the Manager,
Distribution Operations. The agency noted that a meeting took place
on March 20, 2003, with complainant in attendance and that the Manager,
Distribution Operations determined that there were no grounds for charges
against the coworker. Thereafter, complainant filed the instant appeal.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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 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, 381 (5th Cir. 1984).
In the instant case, we find that the agency has not breached the
settlement agreement. We observe that in a statement dated June 11,
2003, the Supervisor, Distribution Operations stated that since the
settlement agreement, a rotation has been put in place and is still
being implemented. The Supervisor noted that there are occasions where
the rotation has worked very well and there are times where the opposite
has resulted. The Supervisor stated that the unit has met or exceeded its
goals when the two employees referenced by complainant worked together
in unloading the vans. According to the Supervisor, these employees
have worked together under his supervision only in unloading vans and
processing mail at CUs 1, 2 & 3. The Supervisor further stated that
complainant has worked under his supervision with several of her coworkers
in unloading vans as well as processing mail over the CUs 1, 2 & 3.
We find that complainant has not refuted the Supervisor's statement with
regard to the implementation of the rotation system and that complainant
has not shown that the agency has breached the settlement agreement.
With regard to the incident where complainant was allegedly called a
�crybaby� by a coworker, we find that this constitutes a subsequent act
of alleged discrimination. Such acts should be processed as a separate
complaint under 29 C.F.R. � 1614.504(c) if complainant wishes to pursue
the matter. Therefore, if complainant wishes to pursue the matter
then she should contact an EEO Counselor within 15 days of the date
this decision becomes final. If complainant contacts an EEO Counselor
within 15 days of the date this decision becomes final, then the date
complainant first raised this issue with the agency shall be considered
her initial EEO contact date.
Accordingly, the agency's decision finding that it did not breach the
settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
February 25, 2004
__________________
Date