01983946
01-13-2000
Jacqueline Small, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jacqueline Small v. United States Postal Service
01983946
January 13, 2000
Jacqueline Small, )
Complainant, )
)
v. ) Appeal No. 01983946
) Agency No. 4-H-330-1537-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's March 18, 1998 decision dismissing
Complainant's breach of settlement claim, is not proper pursuant to the
provisions of 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and
hereinafter referred to as 29 C.F.R.� 1614.504).<1>
On August 21, 1996, Complainant filed a formal complaint of discrimination
alleging that she has been discriminated against on the bases of race
and national origin when on April 22, 1996, her request for a revised
schedule was denied.
On September 2, 1997, Complainant reached a settlement agreement with the
agency in which she agreed to "withdraw any and all pending complaints,
appeals, grievances or other actions relative to the subject matter
contained in this complaint". The settlement agreement contained,
in pertinent part, the following provisions:
(1) from today, September 2, 1997, until [a named agency official,
hereinafter referred to as "CD"] returns to work on September 13, 1997,
[Complainant] will continue working in her current position (RO Carrier)
with the hours being temporarily 8:00 AM until 4:30 PM;
(2) CD has agreed and has the authority and has expressed every intention
of placing [Complainant] in a CFS Coordinator position with the work
hours being 8:00 AM to 4:30 PM. This will take effect upon her return
to work on September 13, 1997;
(3) [An agency Manager] will not be personally held responsible or
liable for any statements made by CD pertaining to this agreement".
The record shows that at the time of the agreement CD was on annual
leave and instead of returning to Sunset Branch on September 13, 1997,
was sent to a different station.
On October 3, 1997, Complainant raised a breach of settlement claim,
alleging that she had not been returned to the CFS Coordinator position
with work hours from 8:00 AM to 4:30 PM, in accordance with provision
2 of the settlement agreement..
On March 18, 1998, the agency issued a final decision dismissing
Complainant's claim after finding that CD "has every intention of
utilizing [Complainant] as a CFS coordinator when she is returned
to Sunset Station, but due to needs of the service, she is presently
reassigned to another station".
The Commission's regulations provide that any settlement agreement
knowingly and voluntarily agreed to by the parties shall be binding
on both parties. 29 C.F.R. � 1614.504(a). A settlement agreement
is a contract between the complainant (Complainant herein) and
the agency, and it is the intent of the parties as expressed in the
contract, not some unexpressed intention, which 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
generally has 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 a writing appears to be plain and unambiguous
on its face, its meaning must be determined within the confines of the
document itself, without resort to extrinsic evidence of any kind. See
Montgomery Elevator Co. v. Building Engineering Services Co., 730 F.2d
377 (5th Cir. 1984).
The plain language of provision 2 of the settlement agreement indicates
that CD agreed and stated that she had the authority and "every intention
of placing" Complainant in a CFS Coordinator position with the work
hours being 8:00 AM to 4:30 PM. The agreement further provided that this
action would take effect upon CD's return to work on September 13, 1997.
A review of the settlement agreement reflects that it did not provide
that Complainant would be placed in the position and hours in question
contingent upon CD's return to the Sunset Branch. Rather, the agreement
clearly stated that Complainant would be placed in a CFS Coordinator
position with work hours of 8:00 AM to 4:30 PM effective September 13,
1997, when CD returned to work. CD returned to work for the agency on
September 13, 1997. Nevertheless, Complainant was not placed in the
position in question, nor was she reassigned to the hours of 8:00 AM to
4:30 PM.
Therefore, we reject the agency's argument that it complied with the
settlement agreement because, when and if CD returns to Sunset Branch,
Complainant will be placed in the CFS position contingent upon CD's
return to Sunset Branch. The agency's arguments as well as the delay
in the implementation of the terms of the settlement agreement show that
the agency is not making good faith efforts to comply with the terms of
the agreement. Based on the circumstances in this case, we find that,
rather than ordering the agency to reinstate complainant's EEO complaint,
the agency should be required to implement provision 2 of the settlement
agreement.
Accordingly, the agency's decision finding no breach of settlement claim
is REVERSED. Complainant's claim is REMANDED for further processing
in accordance with the ORDER below.
ORDER
The agency shall implement provision 2 of the settlement agreement
entered into on September 2, 1997, by placing complainant into a CFS
Coordinator position with the work hours of 8:00 AM to 4:30 PM.
The aforementioned action must be completed within thirty (30) calendar
days of the date that this decision becomes final. The agency must
submit evidence of its implementation of provision 2 of the settlement
agreement to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 provision
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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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 (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 provision above
("Right to File A Civil Action").
FOR THE COMMISSION:
Jan 13, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________ __________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On 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.