Freela H. Shay, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 2, 2000
01993522 (E.E.O.C. May. 2, 2000)

01993522

05-02-2000

Freela H. Shay, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Freela H. Shay, )

Complainant, )

)

v. ) Appeal No. 01993522

) Agency No. 4A088004499

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated March 11, 1999, finding that it

was in compliance with the terms of the January 20, 1999 settlement

agreement into which the parties entered.<1> 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);

and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �

1614.405).

The settlement agreement provided, in pertinent part, that:

(1) the responsible management official (RMO) agrees to arrange for

an intervention program to be held at the Branchville facility at the

earliest possible time, preferably within a month,

(2) the RMO agrees to contact the financial office to have them run

reports for higher level work hours, for the [fiscal year] 1998, on both

[CW1] and [CW2],

(3) the RMO will contact the Postmaster to advise that due to recent

information, CW2 will no longer be used on higher level.

By letter to the agency dated February 10, 1999, complainant alleged

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

that the agency reinstate her EEO complaint. Specifically, complainant

alleges that she met with agency officials to discuss implementation of

the settlement agreement. During the meeting, the parties agreed that

complainant could perform�204B� work from her home office. After the

204B agreement was reached, the complainant argues that the agency

informed her coworkers about the details of the agreement. As a result,

the complainant contends that her husband, Postmaster at complainant's

facility, was retaliated against. Complainant argues that agency

officials held several meetings with her husband, including a crisis

intervention. Complainant says that some agency employees believe that

the 204B arrangement violated the agency's anti-nepotism policies.

In its March 11, 1999 FAD, the agency concluded that it complied with

the terms of the settlement agreement. On appeal, the agency argues

that there is no basis for the Commission to reinstate the complaint.

Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

cited as 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. If

the complainant believes that the agency has failed to comply with the

terms of a settlement agreement or final action, the complainant shall

notify the EEO Director, in writing, of the alleged noncompliance within

30 days of when the complainant knew or should have known of the alleged

noncompliance. The complainant may request that the terms of the agreement

be specifically implemented, or, alternatively, that the complaint be

reinstated for further processing from the point processing ceased.

EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency shall

resolve the matter and respond to the complainant, in writing. If the

agency has not responded to the complainant, in writing, or if the

complainant is not satisfied with the agency's attempt to resolve the

matter, the complainant may appeal to the Commission for a determination

as to whether the agency has complied with the terms of the settlement

agreement or action. The complainant may file such an appeal 35 days after

he or she has served the agency with the allegations of noncompliance,

but must file an appeal within 30 days of his or her receipt of an

agency's determination.

The Commission has consistently held that settlement agreements are

contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).

The complainant has not identified a breach of the settlement agreement.

When the agency performed its obligations under the agreement, complainant

became dissatisfied with the unintended consequences, namely that her

coworkers discovered the details of her agreement with the agency.

Based on our review of the record in the present case, the arguments

on appeal, including those arguments not expressly addressed herein,

the Commission finds, in the present case, that complainant has failed

to sustain his burden of showing that the agency was not in compliance

with the January 20, 1999 settlement agreement.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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. 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. If you

file a request to reconsider and also file a civil action, 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:

May 2, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On November 9, 1999, revised

regulations 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.