0120090454
02-18-2009
Michelle R. Littlejohn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michelle R. Littlejohn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090454
Agency No. 4E-640-0110-07
DECISION
Complainant filed a timely appeal with this Commission from a letter
of determination by the agency dated September 23, 2008, finding that
it was in compliance with the terms of the October 17, 2007 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The October 17, 2007 settlement agreement provided, in pertinent part,
that:
"Discipline for [Complainant], on matters that have not gone up yet,
will be withheld. An 1840 will be conducted on [Complainant's] route.
Standards for performance will be set. Deficiencies and corrections will
be communicated to [Complainant] with guidelines set for expectations.
[Complainant's] discipline will be reviewed in six months, with the
exception of those matters settled in arbitration. [Manager, Customer
Services (MCS)] is looking for reasonable consistency in the time &
in which [Complainant] carries the route and for reasonable accuracy in
her time estimates.
If by April 30 performance is satisfactory, discipline still standing will
be dropped. The period between now & April 30, 2008 will be considered
a period of evaluation for [Complainant]."
By letter to the agency dated August 29, 2008, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency breached the agreement when: "(1)
[Supervisor Customer Service (SCS)] and [MCS] agreed to do a route
inspection 1840 complete to get an idea of the length of the route.
This would give me the information necessary to give an estimate
(accurate) to help insure the proper amount of time is given to complete
the route. *Not done (the inspection). 2) [SCS] and [MCS] agreed to
sit down with me to discuss the route to make the necessary adjustments.
Not done (job discussion). After several request by the union. 3)
Despite numerous requests and opportunities give to management to sit
down w/the union and myself to discuss my route/job as agreed upon.
4) Continues to issue letters of warning regarding accurate estimates
of my route of which have not been discussed. 5) Management issuing
a letter for my removal in 14 days because of these letters that are
in my file which are (1) inaccurate and (2) a breach of the agreement."
Complainant further alleged that management refused to release the letters
from her file "months after the agreed upon time [emphasis added]."
In its September 23, 2008 letter of determination, the agency
found no breach. According to the agency, MCS, who was involved in
the settlement negotiations, stated that the settlement agreement
was honored. MCS stated that management conducted 1838s (office
inspections of route) and 3999s (street inspections of route) in order
to complete the 1840-route adjustment in accordance with the agreement.
MCS stated, however, the adjustment was not made because complainant did
not give a reasonable consistency/effort in performing her duties or in
her time estimates as she agreed to do per the terms of the agreement.
MCS stated that as a result, he was unable to determine that an adjustment
was needed on complainant's route.
Further, the agency stated that according to SCS, he completed the
1838-office inspections on complainant's route on October 22, 23, 24,
29 and 30, 2007, to collect the data necessary to make adjustments
to her route. SCS stated that he met with complainant one-on-one to
discuss deficiencies/time-wasting practices noted during the count and
acknowledged that complainant had corrected some of the deficiencies
outlined during their discussion. SCS stated that other management
officials completed 3999-street inspections on complainant's route to
collect other data necessary to make adjustments on her route. However,
SCS stated that while complainant started off honoring the agreement,
by making a reasonable effort to give accurate time estimates, it only
lasted for approximately three weeks. SCS stated that after that time,
complainant's performance was no longer satisfactory and she failed to
give reasonable effort and time estimates on her route. SCS stated that,
as a result, complainant's route was not qualified for an adjustment.
Moreover, he said complainant's poor performance affected his and MCS's
decision to remove the discipline that they agreed to consider removing
from her file in April 2008. SCS stated that in August 2008, he met with
complainant's steward to discuss whether or not the discipline outlined
in the instant settlement agreement would stay in complainant's file.
SCS stated that although management did not feel that complainant had put
forth reasonable effort, they agreed to remove the discipline because
she and MCS changed facilities prior to the end of the April 30, 2006
evaluation period. SCS stated even though he and MCS agreed to remove
the discipline from complainant's file as requested, complainant declined
the offer for them to do so on August 21, 2008.
The agency noted that the record reflects that on February 2, 2008,
complainant voluntarily bid on a position at the Wyandotte West Station,
making the issue of route adjustment at the Robert L. Roberts Station
moot. The agency determined that complainant's transfer occurred before
the evaluation period of October 17, 2008 - April 30, 2008 had expired.
The agency further determined that there was no evidence in the record
indicating that complainant was issued discipline or removal subsequent to
the settlement agreement. Moreover, the agency stated that complainant
did not allege breach until August 29, 2008, more than 30 days after
she transferred to the Wyandotte West Station.
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 O 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, the Commission determines that the record in
this case contains insufficient evidence for us to determine whether
a breach of provisions 4 and 5 of the instant agreement has occurred.
We note, for example, that the agency's final decision finding no
breach is predicated upon statements by M1 and SCS. However, the record
contains no affidavits from these individuals indicating that the agency
fulfilled its obligations under the terms of the settlement agreement.
In Ericson v. Department of the Army, EEOC Request No. 05920623 (January
14, 1993), the Commission made clear that "the agency has the burden of
providing evidence and/or proof to support its final decisions." See also
Gens v. Department of Defense, EEOC Request No. 05910837 (January 31,
1992). Given the lack of evidence in this case, we are unable to ascertain
whether the agency complied with the settlement agreement.
Accordingly, the agency's finding of no breach of provisions 4 and 5
of the settlement agreement is VACATED. The matter is REMANDED to the
agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing that
it has complied with the settlement agreement. The supplementation of
the record shall include documentation, such as affidavits from MCS and
SCS, indicating that the agency was in compliance with the settlement
agreement. Within thirty (30) calendar days of the date this decision
becomes final, the agency shall issue a new decision, with appeal rights
to the Commission, concerning whether it breached the October 17, 2007
settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 77960, Washington,
D.C. 20013. 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) (1994 & Supp. IV 1999).
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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 18, 2009
__________________
Date
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0120090454
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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