01982402
10-19-1998
Kimberly A Wachter, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kimberly A Wachter, )
Appellant, )
) Appeal No. 01982402
v. ) Agency No. 4D-250-1144-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision finding that it
did not breach the terms of the settlement agreement into which the
parties entered. See 29 C.F.R. ��1614.402, .504(b); EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the terms of the
settlement agreement into which the parties entered.
BACKGROUND
A review of the record reveals that appellant filed a formal EEO complaint
on October 28, 1996, alleging that she had been subjected to unlawful
discrimination on the bases of sex (female) and in reprisal for prior
EEO activity. The agency initially accepted appellant's complaint for
processing, and conducted an investigation. Prior to a full hearing being
held, appellant and the agency settled the complaint on October 30, 1997.
The oral settlement agreement was read into the hearing transcript.
Transcripts of the hearing reveal that the agreement provided, in
pertinent part, that:
(1) The agency has assured [appellant] that she will be treated fairly
and equitably regarding her start time;
(2) The agency has agreed to perform a Special Inspection ("SI")
of [appellant's] work by December 1, 1997 [preferably by an outside
inspector];
(3) [Appellant] will be assured that she will be treated fairly and
impartially and that she will not be harassed on the job; and
(4) [Appellant] is free from any kind of reprisal for taking part in
this EEO complaint and this settlement and that the agency will abide
by the laws established by Title VII.
By letter to the Commission dated February 2, 1998, appellant alleged
that the agency had breached the settlement agreement.<1> Appellant
alleged that the agency breached the settlement by subjecting her to
continued harassment. Additionally, appellant asserted that another
employee was permitted to change his starting schedule to an earlier
time while appellant was not given the same opportunity to do so.
Appellant argued that this was in violation of provision (1) of the
agreement. Finally, appellant acknowledged that the agency conducted
an SI within the time frame contemplated by the settlement; however,
appellant asserted that the results of the SI were not provided to
appellant within the time frame required by the Employee Handbook,
and did not result in her route becoming an 8-hour route.
In its final decision dated April 23, 1998, the agency declined to
reinstate appellant's complaint, finding that it had not breached the
settlement agreement. The agency asserted that the other employee's time
change was only temporary and was not, therefore, unfair to appellant.
Additionally, the agency argued that the incidents of harassment mentioned
by appellant are merely everyday occurrences for all carriers and,
therefore, appellant was not the victim of further harassment. Finally,
the agency asserted that because the SI was performed within the time
constraints set out in the agreement and by an outside inspector, the
agency was in compliance.
ANALYSIS AND FINDINGS
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. In addition, 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).
Settlement agreements are contracts between the appellant and the agency,
and it is the intent of the parties as expressed in the contract, not
some unexpressed intention, that controls the contract 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).
EEOC regulation 29 C.F.R. �1614.504 provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, she may request that the terms of the agreement
be specifically implemented, or, alternatively, that the complaint be
reinstated for further processing. However, the Commission has held
that a complaint which alleges reprisal or further discrimination
in violation of a settlement agency's "no reprisal" clause, is to be
processed as separate complaints and not as a breach of settlement.
Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990); 29 C.F.R. �1614.504(c).
We find that, similar to a "no reprisal" clause, allegations of breach
of provision (3), which prohibits additional acts of harassment, should
be processed as separate complaints rather than as breach allegations.
Therefore, we find that appellant's allegations of continued harassment
must be remanded to the agency for processing as new allegations.
Under provision (2) of the agreement the agency was to conduct an
SI prior to December 1, 1997. Appellant acknowledges that the SI
took place during the week of November 17, 1997, through November 22,
1997; however, appellant contends that it was not properly performed.
The record discloses that the agency complied with the plain language of
the settlement agreement. We find that any alleged improprieties with
the SI itself should properly be treated as subsequent allegations of
discrimination and processed under 29 C.F.R. �1614.
The face of the settlement agreement provides that appellant will
be provided fair and equitable treatment with respect to her start
time. Appellant asserted that the agency provided coworkers the
opportunity to start their shifts at an earlier time, while denying
appellant's requests to do so. We find that the record does not
contain the comparative data necessary to make an informed decision
concerning appellant's allegation of breach. The agency asserted that
only one employee's request for an earlier starting time was honored,
and only on a temporary basis; however, the agency did not provide
supporting evidence for this assertion. Moreover, the agency did not
address whether other employees, absent requests for a change in their
schedule, were provided an earlier start time, and if so, why fairness
and equity precluded appellant from starting earlier. Based on the lack
of supporting documentation, we must remand the matter to the agency
for further investigation.
CONCLUSION
Accordingly, the agency's decision is hereby VACATED. This case is
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall notify appellant of the opportunity to meet
with an EEO Counselor concerning her allegations of subsequent acts of
alleged harassment.
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall initiate a supplemental investigation to determine
whether appellant was treated fairly and equitably with respect to
her start time, i.e., whether provision (1) was properly implemented.
The agency shall include all supporting documentation in the record.
Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall issue a new FAD addressing appellant's allegations
of settlement breach.
A copy of the letter notifying appellant of the opportunity to meet with
an EEO Counselor and a copy of the new FAD must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 19, 1998
______________________________
DATE Ronnie Blumenthal, Director
1We note that the agency received notice of appellant's allegations
of breach on February 23, 1998.