01994615
02-09-2001
Michelle A. Brindle, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michelle A. Brindle v. United States Postal Service
01994615
February 9, 2001
.
Michelle A. Brindle,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994615
Agency No. 4A-088-0076-99
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated April 26, 1999, finding that it was in
compliance with the terms of the March 2, 1999 settlement agreement into
which the parties entered.
The settlement agreement provided, in pertinent part, that :
(1) Management will accept Ms. Brindle's resignation. Her PS 50 will
reflect resignation in lieu of termination. Ms. Brindle will provide
[the Postmaster] a letter of resignation within five (5) days.
Within five (5) days [the Postmaster] will notify personnel to activate
Ms. Brindle's score on all registers she qualifies for.
If [the Postmaster] or [the Supervisor, Customer Services] is contacted
for a recommendation for Ms. Brindle, they will provide information
that is as positive as possible.
[The Postmaster] will review Ms. Brindle's timecards and compare with
her payroll stub to determine if she is owed for one (1) additional
work hour. [The Postmaster] will notify Ms. Brindle by telephone as
to whether she is entitled to the extra hour of pay.
By letter to the agency dated March 29, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that her EEO complaint be reinstated. Specifically, complainant alleged
that instead of changing her PS 50 to reflect her resignation (and not
termination) as per the agreement, the agency copied the settlement
agreement verbatim on the PS 50 to state �resignation in lieu of
termination.� In its April 26, 1999 decision, the agency concluded that
the settlement agreement had not been breached because the language used
on the PS 50 was stated in the agreement and there was no provision in the
settlement that stated that the PS 50 should read �resignation� only.<1>
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 find that the agency breached the settlement
agreement. While it is true that the agreement stated that the PS
50 would reflect �resignation in lieu of termination� and the agency
took those words verbatim from the settlement and inserted them into
complainant's PS 50, that agency action does not comply with the plain
meaning of the agreement as written. The phrase �resignation in lieu of
termination� was not written into the agreement within quotation marks.
Absent the existence of quotation marks, the plain meaning of those
words is that the PS 50 would reflect the word �resignation� in place
of, or instead of, the word �termination.� Therefore, as the record
reflects that the agency did not replace �termination� with �resignation�
on complainant's PS 50, the agency is in breach of the settlement.
Although complainant requested that her EEO complaint be reinstated
because of the agency breach, under the present circumstances we find it
appropriate that the agency specifically perform the term of the agreement
breached, and that her PS 50 be re-issued with the word �resignation�
in place of the phrase �resignation in lieu of termination.� See 29
C.F.R. � 1614.504(c).
Accordingly, the agency's decision that it did not breach the settlement
agreement is REVERSED. The case is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER
Within 15 calendar days of the date this decision becomes final, the
agency shall specifically perform the portion of term (1) of the agreement
that it has breached. Specific performance shall consist of agency action
to change complainant's PS 50 to state the word �resignation� in place
of the phrase �resignation in lieu of termination,� and to re-issue the
PS 50. A copy of the agency's evidence of the changes to complainant's
PS 50 must be sent to the Compliance Officer as referenced herein.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 9, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Although the agency decision stated that �[t]here is no provision in
the Settlement Agreement that states the [PS 50] should read Termination
Only,� we read the agency's statement to mean �resignation only.�