Edith Roundtree, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 12, 2009
0120092758 (E.E.O.C. Nov. 12, 2009)

0120092758

11-12-2009

Edith Roundtree, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Edith Roundtree,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120092758

Agency No. 4H-327-0099-08

DECISION

Complainant filed a timely appeal with this Commission from a final agency

decision dated April 23, 2009, finding that it was in compliance with

the terms of the October 19, 2007 settlement agreement into which the

parties entered. See 29 C.F.R. �� 1614.402; 1614.405; and 1614.504(b).

The settlement agreement provided, in pertinent part, that:

1. The proposed Letter of Warning in lieu of the 7 Day Suspension

is null and void because it is procedurally defective.

2. The Letter of Warning issued on May 23, 2007 will be expunged

after December 31, 2007.

By pre-complaint to the agency, 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, in a May 8, 2008 Notice of Proposed Removal (Notice),

cited a Letter of Warning (LOW) that should have been expunged from her

personnel file after December 2007.

In its April 23, 2009 final decision, the agency concluded that it did not

breach the settlement agreement.1 Specifically, the agency stated that

complainant's disciplinary file does not currently contain the LOW and

that it was not referenced in any subsequent discipline to complainant.

The instant appeal from complainant followed. On appeal, complainant

stated that the agency's assertion that it removed the LOW from her file

as required by the agreement is false. Further, complainant alleged

that the agency failed to cure the problem within 35 days after she

raised the matter. On appeal, complainant provided a copy of the May

8 Notice stating the following.

In addition, the following element of your past record was considered

in taking this action:

On September 6, 2007 you were issued a Proposed Letter of Warning in

Lieu of a 7-Day Suspension for Unsatisfactory Performance.

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).

After careful consideration, the Commission finds that complainant met her

burden of establishing that the agency breached the settlement agreement.

The agency stated, in the settlement agreement, that the LOW was "null and

void" and would be expunged from complainant's record after December 31,

2007. The record shows that the agency cited the LOW as a consideration

in a May 2008 Notice of Proposed Removal. Hence, based on the "plain

meaning" of the agreement, we find that the agency failed to comply as it

gave value to the LOW after it said it would no longer do so. Pursuant to

29 C.F.R. � 1614.504(a), for successful breach claims, the Commission may

order specific implementation of a settlement agreement or reinstatement

of the underlying EEO complaint. However, here, the agency indicates

the LOW has since been removed from complainant's files and, under EEOC

Appeal No. 0120090149, the agency was ordered to investigate her Notice

of Proposed Removal. Hence, to the extent that it has not already

done so, we order the agency to specifically implement the provisions

of the agreement consistent with this decision and the Order below.

The agency's final decision is REVERSED and REMANDED for that purpose.

ORDER

To the extent that it has not already done so, we ORDER the agency to

regard the LOW at-issue herein as "null and void" and expunge said LOW

from complainant's records, consistent with this decision.

Documentation substantiating the agency's compliance with this Order

must be sent to the Compliance Officer as referenced below.

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

November 12, 2009

__________________

Date

1 We note that in Roundtree v. U.S. Postal Service, EEOC Appeal

No. 0120090149 (March 20, 2009), in pertinent part, the Commission

remanded complainant's breach claim to the agency for further processing.

Additionally, the Commission found that complainant stated a viable claim

of retaliation by alleging that the agency discriminated against her when

it issued her the May 2008 Notice of Proposed Removal. The Commission

reversed and remanded the retaliation claim for further processing,

which the agency completed under agency number 4H-327-0099-08.

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012009275

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092758