Kristen Gordon, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 7, 2000
01992863 (E.E.O.C. Mar. 7, 2000)

01992863

03-07-2000

Kristen Gordon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Kristen Gordon, )

Complainant, )

)

v. ) Appeal No. 01992863

) Agency No. 4E-840-0035-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On March 2, 1999, the complainant filed a timely appeal with this

Commission from a final decision (FAD) by the agency dated February 23,

1999, finding that it was in compliance with the terms of the October 8,

1998 settlement agreement (SA) into which the parties had entered.<1>

See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999) (to be codified and

hereinafter referred to as EEOC Regulations 29 C.F.R. �� 1614.402,

1614.405, 1614.504(b)).

The settlement agreement provided, in pertinent part, that:

(10) The agency agrees that it will not take any retaliatory action

against the complainant, and will monitor the complainant's hours and

work schedules to assure that she is provided fairness and equalization

with similarly situated employees.

By letter dated January 8, 1999, to a management official (MO), the

complainant requested information regarding both hers and similarly

situated employees' work hours for the week of January 2, 1999, because

she believed that the others may have been scheduled for more hours

than she. She also requested a meeting to discuss a remedy and to

ensure compliance in the future. After receiving no response from the

MO, by letter dated January 24, 1999, to an agency EEO Specialist, the

complainant requested assistance with resolving an issue covered by the

October 1998 SA. On January 26, 1999, the Manager of Human Resources

(MHR) acknowledged the complainant's January 24, 1999 letter in which

he stated that she had alleged a breach of settlement.

By letter dated January 26, 1999, an EEO Counselor/Investigator alerted

the MO to the complainant's allegation of breach and requested his

written response to the allegation. By letter dated January 29, 1999,

the MO responded to the EEO counselor's request, stating that he had

gathered the time records which the complainant had requested and

was waiting for her to call him to schedule a meeting. In addressing

the issue of breach, the MO stated that during the week in question,

the complainant was complaining about a sick child and did not want

to stay full tours. The MO further stated that the agency could have

used her more had she been willing to stay most days. The MO also

stated that the agency was unable to reach the complainant by phone

on Friday of that week despite the fact that they had hours for her

to work. As to the complainant's work hours for that week, she worked

a total of 28.03 hours which included 3 hours of dependant care leave.

The other similarly situated employees worked an average of 35.64 hours

that week, with two of them working less hours than did the complainant.

The MO included copies of the time records with his response letter.

On February 5, 1999, the complainant faxed a letter dated January 31,

1999, to the MHR, in which she contended that the MO's failure to respond

to her January 8, 1999 request for information regarding scheduled work

hours in reference to the SA was done in retaliation for her prior EEO

activity. She further contended that in the MO's response to the January

26, 1999 EEO inquiry, he misrepresented facts and made sexist comments

in further retaliation against her. Moreover, she requested advice as

to what alternatives were available to her regarding the reopening of

her case or requesting compliance.

By letter dated February 14, 1999, the complainant responded to the EEO

counselor's February 2, 1999 letter, stating that she believed she was

discriminated against on the basis of retaliation, sex and the agency's

failure to comply with the EEO settlement agreement. The complainant

requested remedy in the form of compliance with the settlement agreement

or in the alternative a written letter of apology from the MO, to be

posted for ninety days and restoration as a letter carrier with full

seniority and rights.

In its February 23, 1999 letter of compliance, the agency concluded

that a one week period was not a reasonably sufficient length of time

to evaluate the fairness and equalization of the complainant's scheduled

hours. Therefore, the agency stated that it was in compliance with the

settlement agreement. However, the agency informed the complainant that

she could request reinstatement of her complaint for further processing

but this would negate the settlement agreement and she would be required

to return the six hundred dollars which she received under the settlement

agreement. The agency also informed the complainant that her request for

EEO counseling would not be pursued because the events which she alleged

were those which occurred in conjunction with the agency's inquiry into

her January 24, 1999 breach of settlement agreement letter.

On appeal, the complainant argued both the merits of her breach of

settlement agreement claim and that the agency improperly refused to

process her separate complaint of discrimination. Specifically, the

complainant contended that since she signed the settlement agreement

she has been subjected to increased supervision and harassment which

has created a hostile working environment. Moreover, the complainant

reiterated her belief that the events she sought EEO counseling on

were separate discriminatory acts and that the agency should proceed to

process her informal complaint made on February 17, 1999. The agency

filed no brief in support of its FAD.

64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as 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).

In the instant case, we agree with the agency that at the time it issued

its decision, it was in compliance with the settlement agreement.

Nothing in the settlement agreement specifies a time period for which the

complainant's hours and work schedule must be equal to each similarly

situated employee. We note that while one week the complainant may

have less hours than other similarly situated employees, it is equally

possible that in the following week those other similarly situated

employees may have less hours than the complainant. We find that a one

week period is not a reasonably sufficient length of time to determine

whether the agency is complying with the intent of the settlement

agreement and therefore, AFFIRM the agency's finding of compliance.

The Commission has held that a claim which alleges reprisal or further

discrimination in violation of a settlement agreement's �no reprisal�

clause, is to be processed as a separate complaint and

not as a breach of the settlement agreement. See Bindal v. Department

of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990).

Here, the record shows that the complainant alleged retaliation repeatedly

in her correspondence with the agency, as well as, the breach of the

settlement agreement. On appeal, she continues to allege that increased

supervision and harassment have created a hostile working environment.

We define the complainant's claim of retaliation as a discrete event

occurring after the parties signed the settlement agreement which the

agency should, therefore, process as a new complaint.

Accordingly, we ORDER the agency to process the complainant's February

17, 1999 informal EEO complaint from the point where processing ceased

in accordance with the applicable regulations.

ORDER

The agency is ORDERED to notify the complainant of her right to obtain

counseling on the subsequent claims of discrimination raised during the

processing of her breach allegations as defined by this decision within

fifteen (15) calender days of the date this decision becomes final.

The agency will deem February 2, 1999, as the date of the initial EEO

counselor contact for processing of the complainant's subsequent claims.

A copy of the agency's notice sent to the complainant pursuant to this

ORDER and any other documentation pertaining to the agency's compliance

with this ORDER must be sent 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 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 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 paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

March 7, 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

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.