Emma Rogers, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity CommissionMar 6, 2009
0120062389 (E.E.O.C. Mar. 6, 2009)

0120062389

03-06-2009

Emma Rogers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.


Emma Rogers,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Eastern Area),

Agency.

Appeal No. 0120062389

Agency No. 4C-270-0037-06

DECISION

Complainant filed a timely appeal with this Commission from a decision

by the agency dated February 27, 2006, in which the agency informed

complainant that it was voiding a February 22, 2006 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:

[Complainant] is requesting to be reinstated and allowed to

retake test. [Management] is agreeing to [complainant's]

reinstatement with an agreement that [complainant] start on

2/25/06 and is able to take the examination (test) and be allowed

to keep her employment.

In its February 27, 2006 decision, the agency stated that after reviewing

the agreement, the agency determined that the terms of the agreement

violated Handbook EL-312, Employment and Placement, which stipulates

that "reinstatement requires completion of a new probationary period."

The decision further stated that attempts were made to renegotiate the

terms of the agreement, but complainant failed to cooperate. The decision

concluded that because complainant did not renegotiate the agreement, the

agency will reinstate her complaint from the point processing ceased.

On appeal, complainant contends that the agency breached the agreement

by failing to reinstate her and overturning the 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 settlement agreement, the agency agreed to reinstate

complainant and allow her to take an examination that would determine

whether she remained employed with the agency. In its decision,

the agency essentially concluded that the agreement must be voided

because it violated the collective bargaining agreement, which states

that reinstatement requires a new probationary period. However, we

determine that the settlement agreement does not preclude the agency from

reinstating complainant with a new probationary period, which complainant

indicates on appeal would not be objectionable. Thus, we find that the

agreement is not void, and the agency breached the agreement when it

failed to reinstate complainant.

To remedy a finding of breach, the Commission may order reinstatement

of the underlying complaint, or enforcement of the agreement's terms.

See 29 C.F.R. 1614.504(c). In this case, we find that ordering the agency

to abide by the terms of the agreement is the appropriate remedy.

CONCLUSION

Therefore, the Commission REVERSES the agency's decision and REMANDS this

matter to the agency so that it can undertake actions in accordance with

the Order below.

ORDER

Within thirty (30) calendar days after the date this decision becomes

final, the agency shall reinstate complainant and allow her to retake

the examination in accordance with the February 22, 2006 settlement

agreement.

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

__March 6, 2009________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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