Cheryl D. Campbell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 9, 2009
0120091846 (E.E.O.C. Sep. 9, 2009)

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

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0120091846

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091846