01A23070_r
12-30-2002
Karin L. Mason, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Karin Mason v. United States Postal Service
01A23070
December 30, 2002
.
Karin L. Mason,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23070
Agency Nos. 4I-530-1107-96
4I-530-0079-97
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 23, 2002, finding that it was
in compliance with the terms of the March 3, 1998 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:
(1) There will be no retaliation for any prior EEO Activity.
(2) The complainant will be provided supervisory training when available
and opportunities to work as an acting supervisor.
(3) After completion of supervisory training details, the complainant
will be offered higher level detail, including that of auditor, on an
equitable basis with other bulk mail clerks.
By letter to the agency dated January 20, 2000, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency implement its terms. Complainant alleged that the agency
breached all three points of the settlement agreement mentioned above.
In its July 17, 2000 FAD, the agency found there was no breach of the
March 3, 1998 settlement agreement. On appeal, the Commission vacated
and remanded the matter after finding no signed or sworn affidavits
in the record from the involved officials and no documentation
indicating that complainant was offered the opportunity to train as
per the settlement agreement. On remand, the agency was specifically
ordered to supplement the record with a statement from all agency
individuals that have knowledge of whether the terms of the March 3,
1998 settlement were violated. Mason v. United States Postal Service,
EEOC Appeal No. 01A05343 (July 19, 2001).
Following the Commission's July 19, 2001 decision, the agency supplemented
the record with supporting affidavits and documentation concerning
complainant's breach claims.
The agency issued a new final decision on April 23, 2002, which is the
subject of the present appeal, finding that it did not breach the March 3,
1998 settlement agreement.
On appeal, complainant argues that the supplemental investigation was
not impartial. Further, complainant argues that she was harassed by
a supervisor concerning the change of her starting time as a result of
the settlement agreement, and a manager was aware of the harassment.
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).
A review of the record persuades the Commission that the agency did not
breach the settlement agreement dated March 3, 1998. The Commission
notes in the Manager's affidavit dated January 10, 2002, the Manager
stated that complainant was offered training opportunities pursuant to
the agreement but she turned them down.
Complainant, on appeal, contends that she was harassed by a supervisor
concerning the change of her starting time, as a result of the
settlement agreement, and that the Manager was aware of the harassment.
The Commission has held that a claim of reprisal in violation of
a settlement agreement's no reprisal clause is to be processed as a
separate complaint rather than as a breach of the settlement agreement.
See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990). Additionally, 29 C.F.R. � 1614.504(c) provides that
claims that subsequent acts of discrimination violate a settlement
agreement shall be processed as separate complaints. Therefore, if
complainant desires to pursue these separate claims through the EEO
process, she must initiate contact with an EEO Counselor.
Accordingly, the agency's finding no breach of the March 3, 1998
settlement agreement was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 30, 2002
__________________
Date