0120091846
09-09-2009
Cheryl D. Campbell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cheryl D. Campbell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091846
Agency No. 1K211001109
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 13, 2009, finding that it was
in compliance with the terms of the January 6, 2009 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) The Counselee [Complainant] will not be required to go to the
postal operation known as "The Outside Large." (2) The employee that
Counselee has a problem with will be placed in the Outside Large. (3)
The Counselee shall report any violations to the Manager of Distribution
Operations or her immediate Supervisor.
By letter to the agency dated February 9, 2009, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate her EEO case for further processing. Specifically,
complainant alleged that the agency failed to keep this hostile employee
out of her work area.
In its March 13, 2009 FAD, the agency concluded that management's
intent was to provide complainant "a separate work assignment" from the
antagonistic co-worker "and they did." This co-worker was assigned
to the portion of the facility designated as the Outside Large, and
complainant was assigned to another portion of the facility. This was
done to separate their work locations as much as possible, due to the
confrontational nature of their working relationship.
The agency explained that by assigning complainant and the other employee
to very separate work areas, management has limited the opportunities
for their interaction. Additionally, this co-worker has been told not
to leave his work area without notifying a supervisor; and when he did
on January 27, he was placed off the clock. Since complainant and this
male co-worker both work different tours, and management has reinforced
the need for him to let his supervisor know when he leaves his assigned
work area, the opportunities for their paths to cross in the 1 1/2 hour
tour overlap are extremely limited. Because management has done what was
outlined in the stipulations of the settlement agreement, which included
following up when complainant alerted them of this problematic co-worker
entering her work area, the agency maintained that it is in compliance
with the terms of the settlement agreement.
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).
The burden is on the party alleging breach to establish that a breach
has occurred. Based on the evidence in the record, the Commission finds
that complainant has not shown that the agency has breached the settlement
agreement at issue. Recognizing that complainant details her own account
in several letters to the agency, the Commission is not swayed in finding
that the agency has breached the settlement agreement in this matter.
Accordingly, the agency's final decision finding no settlement breach
is AFFIRMED.
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 (S0408)
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 (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
September 9, 2009
__________________
Date
2
0120091846
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091846