Jeanette Swanson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 4, 2000
01A04119 (E.E.O.C. Dec. 4, 2000)

01A04119

12-04-2000

Jeanette Swanson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Jeanette Swanson v. U.S. Postal Service

01A04119

December 4, 2000

.

Jeanette Swanson,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A04119

Agency No. 1-F-901-2007-00

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated April 19, 2000, finding that it was in

compliance with the terms of the November 17, 1999 settlement agreement

into which the parties entered.<1> 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:

All parties agree that [the Union representative] will immediately start

[the] process to change [complainant's] off days to Friday/Saturday

or Sunday/Monday. All parties recognize that change of off days may

not be effective until after Christmas (January 1).

By letter to the agency dated March 14, 2000, complainant alleged that

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

the agency implement its terms. Specifically, complainant claims that

despite numerous requests, the agency did not change her off days as

provided by the above provision in the settlement agreement.

In its April 19, 2000 final decision, the agency concluded that it was

in compliance with the settlement agreement because the above provision

only provided that the Union representative initiate the request process,

and did not obligate the agency to actually change complainant's off days.

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 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).

Based on a fair reading of the provision in question, we find that it is

not a question of if the agency agreed to change complainant's off days,

but when the agency would change complainant's days off. We can find

no support for the agency's interpretation that this provision did not

obligate them to make the indicated change, especially in light of the

January 1, 2000, estimated date of implementation. Moreover, if the

agency's interpretation were adopted, the settlement agreement would

be declared nudum pactum for lack of consideration, because without the

agency agreeing to change complainant's schedule, the agency incurs no

detriment, and provides no benefit to complainant, in this settlement

agreement. See Collins v. U.S. Postal Service, EEOC Request No. 05900082

(April 26, 1990). We note that it is the Commission's policy, when

possible, to adopt those interpretations which do not render a settlement

agreement void. In this case, we determine that the plain meaning of

the provision obligates the agency to change complainant's days off.

See Rose v. Department of Health and Human Services, EEOC Request

No. 05910888 (March 11, 1992).

In conclusion, we find that the agency breached the settlement agreement

as claimed by complainant. Once a breach is found, as in this case,

the remedial relief is either the reinstatement of the complaint

for further processing or specific enforcement of the settlement

agreement. Here, complainant requested reinstatement of the settlement

agreement. Accordingly, the Commission REVERSES the final decision,

and REMANDS the case to the agency for implementation of the settlement

agreement as set forth in the ORDER below.

ORDER

The agency is ORDERED to take the following action:

1. Within thirty (30) calendar days of the date this decision

become final, the agency will change complainant's days off to either

Friday/Saturday, or Sunday/Monday.

2. Within thirty (30) calendar days of the date that this decision

become final, the agency will notify complainant in writing that it has

changed her days off to either Friday/Saturday, or Sunday/Monday.

A copy of the letter notifying complainant of the change in her days

off must be submitted to the Compliance Officer as referenced below.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 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)(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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (R0900)

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 paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 4, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.