01976134
01-28-1999
Doris Simmons, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Doris Simmons v. United States Postal Service
01976134
January 28, 1999
Doris Simmons, )
Appellant, )
)
v. ) Appeal No. 01976134
) Agency No. 1-H-304-1026-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
For the reasons that follow, the Commission sets aside the agency's June
25, 1997 final decision (FAD), received by appellant on July 8, 1997,
finding the agency did not breach an August 6, 1996 settlement agreement
(SA, or the agreement) with appellant and her representative. We find
the agency has offered no new contentions in response to appellant's
August 7, 1997 appeal to persuade us to reach a contrary conclusion.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. That section further provides that, if the
complainant believes the agency has failed to comply with the terms of a
settlement agreement, the complainant shall notify the Director of Equal
Employment Opportunity of the alleged noncompliance with the settlement
agreement. The complainant may request that the terms of the settlement
agreement be specifically implemented or request that the complaint be
reinstated for further processing from the point processing ceased under
the terms of the settlement agreement.
Settlement agreements are contracts between the complainant and the
agency and it is the intent of the parties as expressed in the contract,
and not some unexpressed intention, that controls the contract's
construction. Eggleston v. Department of Veterans Affairs, EEOC Request
No. 05900795 (Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d
296 (7th Cir. 1938). In addition, the Commission generally follows the
rule that if a 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. Montgomery Elevator
v. Building Eng'g Servs., 730 F.2d 377 (5th Cir. 1984). In Klein
v. Department of Housing and Urban Development, EEOC Request No. 05940033
(June 30, 1994), we stated we would not resort to extrinsic evidence,
outside the four corners of the agreement, to determine the meaning of a
writing which appeared to be facially plain and unambiguous. However,
in Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29,
1994), we stated that "where the terms of the document are ambiguous
or for equitable reasons, the Commission may go beyond the language of
the agreement and look at the intent of the parties to the agreement"
(citation omitted).
In the present case, we find the SA provided, in pertinent part, that
for the position of Supervisor, Distribution Operations (SDO), Atlanta
(Georgia) Bulk Mail Center (ABMC), "appellant's name will be submitted
to the Selecting Official for interview. It is agreed that she will be
interviewed."
We further find that "Selecting Official" is an agency term of art. We
find, from portions of the agency's "Handbook EL-311," at 537.1, which
appellant submitted on appeal, that the "Selecting Official" is the
"Installation Head," and that "[a]ll initial-level supervisor positions
[report] directly to the installation head."
The Handbook also defines, in relevant part, "Selecting Official" to be
"normally the supervisor or manager to whom the vacancy reports."
In the present case, we find the installation head to be the Plant
Manager (PM). We also find that PM was the Selecting Official. We find,
from an April 18, 1997 letter to appellant by PM, PM advised appellant,
in relevant part, as follows: "I have chosen another applicant for the
position [of SDO, EAS-16; ABMC] who, in my judgment, was the best suited
for the position." We further find, in a March 21, 1997 letter from the
agency's Senior Personnel Services Specialist's designee (SPSS) to PM,
that SPSS advised PM as follows, in relevant part:
Attached is the selection file for the vacant positions in your office.
You may designate...a panel of your MDOs [Managers of Distribution
Operations], to interview each of the applicants before making a
selection....
When the selection process has been completed, please sign as Reviewing
Official on the selection sheet....
The FAD does not dispute the fact that PM did not interview appellant for
the position at issue. Instead, the FAD declares that the "Selecting
Official" consisted of a panel of four MDOs, and an Acting MDO, which
panel interviewed appellant. We find appellant was interviewed, on April
14, 1997, by these five individuals, each of whom identified himself
as a "Selecting Official," on a "REVIEW COMMITTEE RECOMMENDATION MEMO,"
signed by PM, on April 15, 1997, as the "Reviewing Official." We further
find that this Review Committee did not select appellant as a candidate
who best met the position's requirements. However, for reasons stated
above, which we will not repeat here, we find the "Selecting Official"
to be PM.
The FAD is hereby VACATED, appellant's underlying EEO complaint is
hereby reinstated, in accordance with 29 C.F.R. �1614.504(c), and this
matter is hereby REMANDED for further processing at the point at which
processing ceased, which, was subsequent to the appointment of an EEOC
administration judge (AJ). The parties are encouraged to resolve this
matter amicably. Meanwhile, the agency shall comply with the Commission's
ORDER set forth below.
ORDER
The agency is ORDERED to take the following actions:
(1) Within thirty (30) calendar days from the date this decision becomes
final, the agency shall request in writing, with a copy of such request to
appellant and her representative, if any, the appointment of an EEOC AJ
to conduct an administrative hearing on appellant's underlying complaint
in this matter, in accordance with 29 C.F.R. �1614.109. The agency shall
request that the hearing be given priority status in light of the time
that has elapsed in this case.
(2) In the event appellant withdraws her request for a hearing, and
requests an immediate final decision on the merits of her complaint
without a hearing, the agency shall issue a final decision in accordance
with 29 C.F.R. �1614.110, within sixty (60) calendar days of the date
the agency receives appellant's request for an immediate final decision.
A copy of the agency's request for an appointment of an EEOC AJ, or
issuance of a final decision, as the case may be, must be submitted to
the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
January 28, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations