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.