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.