Bonnie Howerton, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 24, 2000
01995459 (E.E.O.C. Feb. 24, 2000)

01995459

02-24-2000

Bonnie Howerton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Bonnie Howerton, )

Complainant, )

)

v. ) Appeal No. 01995459

) Agency No. 4-I-630-1135-96

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant timely appealed the agency's decision that denied her

claim that the settlement agreement entered into between the parties

had been breached.<1> See 64 Fed. Reg. 37,644, 37,659 (1999) (to

be codified and hereinafter cited as 29 C.F.R. �1614.402(a)) and 64

Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited

as 29 C.F.R. �1614.504(b).<2>

ISSUE PRESENTED

The issue on appeal is whether the agency breached the settlement

agreement.

BACKGROUND

Complainant filed a formal EEO complaint wherein she claimed that she was

discriminated against on the basis of her sex (female) when on April 17,

1996, the Postmaster instructed her to make an appointment to attend

the Employee Assistance Program.

The complaint was accepted for investigation. Subsequent to the

investigation, complainant requested a hearing before an EEOC

Administrative Judge. The complaint was resolved by a settlement

agreement entered into on May 28, 1998. The agreement stated in relevant

part that:

The agency agrees that it cannot order any employee to attend the Employee

Assistance Program (EAP). The agency may refer an employee to EAP.

Further the parties agree that the EAP Counselors shall set up an

appointment with the Columbia, Illinois Post Office and the Postmaster and

complainant ... shall attend a program if required by the EAP Counselors.

By letter dated April 30, 1999, complainant notified the agency that it

had breached the settlement agreement. According to complainant, the term

of the agreement providing that the agency cannot order any employee to

attend the Employee Assistance Program was violated when a city carrier,

other than complainant, was involuntarily sent by the Postmaster to the

Employee Assistance Program. As a remedy, complainant requested that

her complaint be reinstated from the point that processing ceased.

In its response dated May 10, 1999, the agency determined that the

settlement agreement had not been breached. The agency stated that the

underlying complaint was an individual complaint and that the settlement

agreement applied only to complainant and not all employees.

On appeal, complainant reiterated her contention that the agency failed

to comply with the provision of the settlement agreement that stated no

employee could be ordered to attend the Employee Assistance Program.

In support of her position, complainant submits a statement from the

employee who allegedly was sent to the Employee Assistance Program.

This employee claims that the Postmaster required that she go to the

Employee Assistance Program in February 1999. Complainant also raised for

the first time a claim that the agency has not fulfilled the provision

requiring that EAP Counselors set up an appointment with the Columbia

Post Office, and that the Postmaster and complainant shall attend a

program if required by the EAP Counselors.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

cited as 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.

EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency

shall resolve the matter and respond to the complainant, in writing.

If the agency has not responded to the complainant, in writing,

or if the complainant is not satisfied with the agency's attempt to

resolve the matter, the complainant may appeal to the Commission for a

determination as to whether the agency has complied with the terms of

the settlement agreement or action. The complainant may file such an

appeal 35 days after he or she has served the agency with the allegations

of noncompliance, but must file an appeal within 30 days of his or her

receipt of an agency's determination.

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 matter, complainant claimed that the agency breached the

settlement agreement by

sending an employee to the Employee Assistance Program. The provision

at issue states that the agency agrees that it cannot order �any

employee to attend the Employee Assistance Program.� (emphasis added).

The agency may refer an employee to EAP. We find that complainant

has established that the agency failed to comply with this term of the

settlement. The language of the relevant provision does not restrict its

applicability only to complainant. The term refers to any employee and

the record indicates that an employee was required to go to the Employee

Assistance Program in February 1999. We find that the agency breached

this provision of the settlement agreement. The proper remedial relief

is to reinstate the complaint for further processing. Accordingly,

the agency's final decision finding that there was no breach of the

settlement agreement is hereby REVERSED. This matter is REMANDED for

further processing pursuant to the ORDER below.

Finally, we note that complainant also claimed that the agency breached

the settlement when it failed to have EAP Counselors set up an appointment

with the Columbia, Illinois Post Office. We find, however, that in light

of our decision finding that the agency has breached another provision

of the agreement, we need not address this additional breach allegation.

ORDER

The agency is ORDERED to reinstate the complaint and resume processing

of the complaint from the point processing ceased. Within fifteen (15)

calendar days of the date this decision becomes final, the agency shall

submit a written request for a hearing to the appropriate EEOC District

Office. A copy of the agency's request should be provided to complainant

and must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (R1199)

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 (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:

February 24, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 1Complainant claimed that she mailed her appeal to the

Commission and to the agency on May 15, 1999. The agency received

the appeal on May 19, 1999; however, the Commission apparently did not

receive complainant's submission. We note that complainant apparently

addressed a copy of her appeal to the Commission's St. Louis District

Office. We further note that the agency's response dated May 10, 1999,

did not direct complainant to file an appeal with the Commission.

According to complainant, she learned on June 29, 1999, that the

Commission's Office of Federal Operations in Washington, D.C. had not

received her appeal, and therefore she submitted the appeal by fax

transmission on June 30, 1999.

2 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.