Deborah D. Conerly, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 7, 2000
01990822 (E.E.O.C. Feb. 7, 2000)

01990822

02-07-2000

Deborah D. Conerly, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Deborah D. Conerly v. United States Postal Service

01990822

February 7, 2000

Deborah D. Conerly, )

Complainant, )

)

v. ) Appeal No. 01990822

) Agency No. 4-G-700-1027-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Upon review, the Commission finds the procedural history of this matter

somewhat confusing. However the salient facts appear to be as follows<1>:

The instant matter initially came before the agency pursuant to

complainant's January 17, 1995 complaint of employment discrimination.

The record indicates that the January 17, 1995 complaint was settled with

an agreement between the parties dated October 11, 1996. The settlement

agreement provided, in pertinent part, that:

(1) "[Complainant] will be placed at the top of the list for placement

as an OIC within the 707 zip code area, and will be afforded the next

available OIC assignment as an EAS-11."

The record indicates further that on December 17, 1997, complainant

initiated contact with an EEO counselor, and filed an informal complaint

alleging that the agency had failed to comply with the October 11,

1996 settlement agreement pertaining to Agency No. 4-G-700-1027-95.

Rather than processing complainant's breach allegation in the context of

the initial complaint, No. 4-G-700-1027-95, the agency allowed complainant

to file a separate complaint dated May 13, 1998 and assigned it the

separate Agency No. 4-G-700-0084-98.

Subsequently, the agency issued a final decision (FAD) dated October 6,

1998 dismissing complainant's May 13, 1998 formal complaint for failure to

state a claim. We find that the agency erred when it allowed complainant

to file a separate formal complaint alleging breach of the settlement

agreement. We will not, however, address the agency's October 6,

1998 FAD dismissing complainant's May 13, 1998 complaint because on

November 2, 1998, the agency issued a second FAD finding that it was in

compliance with the terms of the October 11, 1996 settlement agreement.

On November 6, 1998, complainant filed a timely appeal with this

Commission from the final decision (FAD) by the agency dated November 2,

1998, finding that it was in compliance with the terms of the October

11, 1996 settlement agreement into which the parties entered. See 64

Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �

1614.504(b); EEOC Order No. 960, as amended.

In complainant's December 17, 1997 informal complaint, complainant

alleged that the agency was in breach of the settlement agreement, and

requested that the agency specifically implement its terms. Specifically,

complainant alleged that the agency failed to offer her the next available

OIC assignment as an EAS-11, as specified in the agreement.

In its November 2, 1998 FAD, the agency determined that it had complied

with the October 1, 1996 agreement between the parties. It its FAD,

the agency indicated that while complainant was not offered the first

available OIC assignment as an EAS-11 within the 707 zip code, she

was offered, and accepted an OIC assignment at a higher level office,

outside the 707 zip code, and was reimbursed for her travel expenses.

The agency maintains that the intent of the agreement was not breached

in this instance.

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as 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 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 admits that "due to extenuating

circumstances." complainant was not given the first available OIC

assignment in the 707 area code as provided in the agreement between the

parties. Specifically, the agency stated that there was no restroom

available in the portable building that was used as a post office for

the first available OIC assignment following the date that the settlement

agreement went into effect and that as a consequence, the OIC assignment

was given to a former postmaster whose home was located near the post

office. However, the agency maintains that the intent of the agreement

was met when complainant was offered and accepted an OIC position in

another area code. We disagree.

Upon review, we determine that the intent of the agreement was to

place complainant in the first available OIC position in a particular

geographical area. This provision of the agreement was not met,

therefore, it is the decision of the Commission that the agency

breached the October 11, 1996 between the parties. The Commission finds

further that specific implementation of the agreement is impractical.

The most appropriate remedy for our finding of breach is reinstatement

of the underlying complaint. Therefore, we shall order the agency to

reinstate the settled complaint for further processing from the point

processing ceased. See 29 C.F.R. � 1614.504(c).

ORDER

The agency shall, within 30 days of the date this decision becomes

final, reinstate the settled compliant for further processing from the

point processing ceased. The agency shall send a letter to complainant

informing her that the settled complaint is being reinstated. A copy

of the agency's letter reinstating the complaint must be sent to the

Compliance Officer referenced herein.

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 7, 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

1On November 9, 1999, revised regulation 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.