Mary A. Green, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 6, 2000
01984928 (E.E.O.C. May. 6, 2000)

01984928

05-06-2000

Mary A. Green, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Mary A. Green v. United States Postal Service

01984928

May 6, 2000

Mary A. Green, )

Complainant, )

)

v. ) Appeal No. 01984928

) Agency No. 1-Q-1098-90

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant timely appealed the agency's decision that denied her claim

that the settlement agreement entered into between the parties had

been breached.<1>

ISSUE PRESENTED

The issue on appeal is whether the agency breached the settlement

agreement.

BACKGROUND

Complainant filed a formal EEO complaint on May 17, 1990, wherein she

claimed that she was discriminated against on the bases of her age (42),

physical disability (carpal tunnel syndrome), and in reprisal for her

previous EEO activity when:

1. She was denied continuation of pay for December 19, 1989.

2. She was denied work on December 20, 1989.

3. She was not allowed to request limited duty.

4. She was made to work below medical capabilities.

5. She was made to work in a draft.

6. She was kept isolated for a full tour.

7. Management made disparaging remarks about her.

8. Management violated the privacy of her Office of Workers' Compensation

Program files.

The complaint was resolved by a settlement agreement entered into on

January 23, 1992. The agreement stated in relevant part as follows:

5. The complainant will be retroactively placed in a clerk/typist

position effective April 22, 1991. However, she will not physically

or actively perform the duties of the position until and unless she

is medically cleared in accordance with Item 6 of this agreement.

Until such time she shall be temporarily assigned duties on tour 2 in

the CFS unit commensurate with her medical restrictions.

6. Complainant to be granted restricted duties based upon medical

assessment performed as follows:

(C) Once the restrictions have been determined then the Employer shall

provide a list of restricted duty assignments commensurate with the

restrictions found in the paragraph above within 30 days. Every effort

shall be made to reassign the complainant within the employee's regular

craft, during regular tour of duty and in her regular facility.

(D) The above procedure and physicians used shall determine what

assignment she is capable of performing without a reasonable probability

of substantial harm based on substantive medical evidence. If based

on this standard, she is found fit to perform clerk typist duties,

she shall be placed into a clerk-typist position within 2 weeks.

8. It is agreed the complainant will not be subject to harassment,

reprisal or discrimination.

By letter dated April 6, 1998, complainant notified the EEO Office that

provisions 6(D) and 8 of the settlement agreement had been breached.

According to complainant, management violated the agreement by removing

her primary job duties and assigning them to another clerk/typist.

Complainant noted that in 1996, pursuant to a grievance, an additional

clerk/typist position was established on tour 2. Complainant stated that

the person who filled this position lost her primary responsibilities

after that individual's direct supervisor left, and was subsequently

assigned complainant's duties. Complainant requested that the agreement

be enforced and that she be given back all of the duties of her position.

In its final decision dated May 1, 1998, the agency determined that

the settlement agreement has not been breached. The agency stated

that complainant's duties and responsibilities have not been altered.

The agency acknowledged that some of complainant's work has been

temporarily reassigned to another employee, but that her scheduled days

off, reporting time, and work assignment have not been altered.

On appeal, complainant contends that on March 23, 1998, the Manager,

Distribution Operations of tour 2 informed her that she is now sharing

the clerk/typist position. Complainant states that the Manager told

he there was not enough work in the Labor Relations Department for two

clerk typists. Complainant notes that the clerk/typist with whom she

now shares the position previously filed a grievance after she lost

her primary duties. According to complainant, the agency settled that

grievance in a retaliatory manner towards her by essentially awarding

her position to the other clerk/typist. Complainant claims that she was

told to give the other clerk/typist her log, files, and everything that

she has developed in her computer for the past five yeas. Complainant

maintains that the other clerk/typist's duties have been clearly defined,

but that her duties have not been defined. According to complainant,

she now does the work that the other clerk/typist does not want to do.

Complainant argues that the agency's actions constitute a violation of

the eighth provision of the settlement. Complainant requests that her

complaint be reinstated and that she be awarded compensatory damages.

Complainant claims that the agency's violation of the settlement has

caused her to become severely depressed.

In response, the agency notes that in 1996, a second clerk/typist position

was added in the Labor Relations Office, and that this position was

filled by the individual now sharing the position with complainant.

According to the agency, the departure of the Labor Relations Specialist

resulted in an overstaffing of clerk/typist positions. The agency

states that by memorandum dated March 4, 1998, the tour 2 Manager,

Distribution Operations indicated to the Plant Manager that complainant

was in her position based on the settlement of her complaint, and that

excising the other clerk/typist would be in violation of the national

collective bargaining agreement. The agency reiterates its position

that complainant's duties and responsibilities have not been altered,

and that some of her work has been temporarily reassigned to the other

clerk/typist. The agency states that complainant's scheduled days off,

reporting time, and work assignment have not been altered.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

cited as 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.

If the complainant believes that the agency has failed to comply with

the terms of a settlement agreement or final action, the complainant

shall notify the EEO Director, in writing, of the alleged noncompliance

within 30 days of when the complainant knew or should have known of the

alleged noncompliance. The complainant may request that the terms of

the agreement be specifically implemented, or, alternatively, that the

complaint be reinstated for further processing from the point processing

ceased.

EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency

shall resolve the matter and respond to the complainant, in writing.

If the agency has not responded to the complainant, in writing,

or if the complainant is not satisfied with the agency's attempt to

resolve the matter, the complainant may appeal to the Commission for a

determination as to whether the agency has complied with the terms of

the settlement agreement or action. The complainant may file such an

appeal 35 days after he or she has served the agency with the allegations

of noncompliance, but must file an appeal within 30 days of his or her

receipt of an agency's determination.

The Commission has consistently held that settlement agreements are

contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).

In the instant matter, complainant claimed that the agency breached the

settlement agreement with regard to the provisions dealing with her

being placed into a clerk/typist position, and that she would not be

subject to harassment, reprisal, or discrimination. Complainant claims

that the agency breached the agreement by reassigning her primary job

duties and responsibilities to another clerk/typist. We find that

this alleged action by the agency is not a violation of provision

6(D) in light of the fact that this provision addressed complainant's

placement in a clerk/typist position once she was found fit to perform

such duties. The agreement does not specify what duties complainant

would perform, other than that they would be duties commensurate with

the clerk/typist position. With regard to complainant's contention that

the agency breached provision 8, 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. Bindal v. Department of Veteran

Affairs, EEOC Request No. 05900225 (August 9, 1990). Moreover, Fed

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

as 29 C.F.R. �1614.504(c)) provides that "[a]llegations that subsequent

acts of discrimination violate a settlement agreement shall be processed

as separate complaints." Consequently, if complainant wishes to pursue

this claim, she is advised to contact an EEO Counselor.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 6, 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,

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.