Dorinda L. Evans, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity CommissionAug 27, 2009
0120081357 (E.E.O.C. Aug. 27, 2009)

0120081357

08-27-2009

Dorinda L. Evans, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.


Dorinda L. Evans,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Western Area),

Agency.

Appeal No. 0120081357

Agency No. 1E-801-0045-07

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated January 7, 2008, finding that it was

in compliance with the terms of the April 19, 2007 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:

Additional training in mail flow within the next 6 months from the

signing of this agreement.

By letter to the agency dated October 19, 2007, complainant alleged

that the agency was in breach of the settlement agreement and requested

that the agency reinstate her underlying EEO complaint. Specifically,

complainant alleged that "[t]his settlement agreement is void as

management has failed to comply with the final settlement as written."

In its January 7, 2008 FAD, the agency concluded that it did not breach

the agreement. The final decision noted that the Manager of Distribution

Operations maintained that the agency made every effort to see that

complainant obtained additional mail flow training by arranging for

complainant to work as a dispatcher, although the agency did not need her

to work on the APPS machine. The decision further noted that the Manager

consulted with a Mail Flow Coordinator, who determined that complainant

was "completely proficient" in mail flow based on his interaction with

complainant. The decision further stated that the Mail Flow Coordinator

informed the agency that complainant is as "well versed" in mail flow

operations as "any of the personnel that work in the Mail Flow Office."

The decision stated that the Mail Flow Coordinator also reported that

during the two year period that he has been at the Mail Flow Office,

he always received accurate information from complainant regarding mail

flow issues.

On appeal, complainant contends that the agency failed to adequately

address her claim that it breached the agreement. Complainant requests

that the Commission reinstate her underlying EEO complaint. The agency

requests that we affirm its determination that it did not breach 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).

In the instant case, the agency agreed to provide additional mail flow

training to complainant within six months of the signing of the April 19,

2007 settlement agreement. On appeal, complainant provided a copy of

an email from the Manager of Distribution Operations. In the email, the

Manager stated that he has made "every effort" to obtain additional mail

flow training for complainant, and the Mail Flow Coordinator informed

him that complainant is "completely proficient" in mail flow based on

his interaction with her. However, we find that this statement does not

specify how the agency provided complainant with the promised additional

mail flow training. Although the Manager stated that the agency arranged

for complainant to work as a dispatcher, there is nothing in the record

to establish that working as a dispatcher constitutes additional mail

flow training. In fact, the record is devoid of any evidence that

establishes what mail flow is, what types of mail flow training exists,

and the manner by which employees receive mail flow training.

In its decision, the agency stated that the Mail Flow Coordinator

determined that complainant is well-versed in mail flow operations, but

the agency did not provide a copy of the Mail Flow Coordinator's purported

statement for the record. Moreover, the agency appears to conflate

evidence that complainant is proficient in mail flow with evidence that

it provided her with additional mail flow training. Because of the

deficiencies in the record, we are unable to ascertain whether the agency

complied with the terms of the agreement. Consequently, the Commission

VACATES the agency's finding of no breach and REMANDS this matter to

the agency for further processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to take the following action:

The agency shall supplement the record with evidence clearly defining

the term "mail flow," as found in the settlement. The agency shall also

supplement the record with evidence clearly addressing its compliance

with the terms of the agreement and complainant's breach claims by

documenting the types of mail flow training available during the relevant

time period; the manner by which employees are granted mail flow training;

any efforts made to provide complainant with specific, identifiable mail

flow training (including dates of these efforts); and, the results of

any efforts to provide complainant with additional mail flow training.

The supplementation of the record shall also include affidavits from

agency officials that respond to complainant's breach claim and this

decision with particularity. Additionally, the agency shall provide

documentary evidence regarding its obligations under the settlement

agreement. Within ninety (90) calendar days of the date this decision

becomes final, the agency shall issue a new decision concerning whether

it breached provision (4) of the April 19, 2007 settlement agreement.

A copy of the agency's new decision must be sent to the Compliance

Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 77960, Washington,

DC 20013. 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 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) (1994 & Supp. IV 1999).

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

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

See 29 C.F.R. � 1614.409.

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 (R0408)

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 (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

08/27/09

____________

Date

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0120081357

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120081357