Mary Ann O'Farrell, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 9, 2000
01986506 (E.E.O.C. Jun. 9, 2000)

01986506

06-09-2000

Mary Ann O'Farrell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Mary Ann O'Farrell v. United States Postal Service

01986506

June 9, 2000

Mary Ann O'Farrell, )

Complainant, )

)

v. ) Appeal No. 01986506

) Agency No. 1-F-1012-90

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency, dated August 6, 1998, which found that the

agency had not violated provisions 7 and 8 of an October 11, 1990

settlement agreement between the parties.<1> The Commission accepts

the complainant's appeal for decision. See 64 Fed. Reg. 37,644,

37,659, 37,660 (1999)(to be codified and hereinafter referred to as

EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

The settlement agreement provided, in pertinent part, that:

The complainant's OPF [Official Personnel File] shall not reflect any

disciplinary action up to, and including, her termination.

The complainant's Form 50 shall notate voluntary resignation only.

By letter to the agency dated July 17, 1998, complainant alleged that the

agency had violated the settlement agreement by including the following

sentence in a February 27, 1998 response to a Congressional inquiry

regarding an alleged delay in the delivery of the complainant's mail.

We certainly recognize that Ms. O'Farrell has reported continued

difficulties with her mail service since her removal from employment at

the Fitchburg Post Office.

In its August 6, 1998 FAD, the agency indicated that a review of the

complainant's OPF did not disclose any disciplinary action up to,

and including, termination. The agency also indicated that the OPF

included a Form 50 which showed that the complainant voluntarily resigned.

Based on this information, the agency concluded that it had not breached

the settlement agreement and notified the complaint of her right to

appeal the agency's determination.

On appeal, the complaint contends that the agency not only breached

provisions 7 and 8 of the settlement agreement in its February 27,

1998 letter to a Congressman, but may have done so numerous other

times unknown to the complainant. The complainant points out that this

is not the first time the agency has failed to comply with the terms

of the agreement, citing the Commission's prior findings in O'Farrell

v. United States Postal Service, EEOC Request No. 05910518 (September 25,

1991), as clarified by the Commission's decision on the complainant's

petition for enforcement, EEOC Petition No. 04920001 (February 23, 1992).

The agency did not file a timely response to the appeal.

Volume 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).

The complainant did not timely notify the agency of the alleged

non-compliance within 30 days of the date she first learned of the

agency's February 27, 1998 response. See 29 C.F.R. � 1614.504(a).

The complainant admittedly knew as early as March 25, 1998, that the

agency's February 27, 1998 letter had referenced her prior employment.

However, even if the notice were deemed to have been timely filed,

the Commission finds that the complainant has not shown that the agency

breached provisions 7 and 8 of the settlement agreement. The complainant

contends that the only way the agency could have obtained the information

contained in the February 27, 1998 letter was from her OPF. However,

the complainant's appeal submissions indicate that her OPF was stored in

the Civilian Personnel Records Section of the Nation Personnel Records

Center in St. Louis, Missouri, not in the agency facility that sent

the February 27, 1998 letter to the Congressman. In addition, in an

April 7, 1998 letter to the Congressman, the agency apologized for

any offense taken by the complainant to the February 27, letter and

indicated that the complainant was correct that the facility was not

in possession of her OPF. The agency explained that the writer of the

letter had obtained the information regarding the complainant's removal

from the Postmaster. The Commission also observes that complainant

has not submitted any evidence to the Commission which demonstrates that

her OPF reflects her termination rather than her voluntary resignation.

Therefore, the Commission finds that the complainant has not shown that

the agency breached the specific requirements of provisions 7 and 8

of the settlement agreement. The complainant also alleges that the

agency has failed to comply with the Freedom of Information Act and

the Privacy Act. The Commission does not have the authority to enforce

those statutes. The complainant further submits what she terms as new

and material evidence and labels her appeal a request to reopen EEOC

Petition No. 04920001. However, there is no provision in 29 C.F.R. Part

1614 which permits the reopening of an enforcement decision.

For the reasons stated above, the Commission AFFIRMS that agency's finding

that it did not violate provisions 7 and 8 of the settlement agreement.

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:

June 9, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On 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.