01986089
09-10-1999
Patricia K. Poulos, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Patricia K. Poulos v. United States Postal Service
01986089
September 10, 1999
Patricia K. Poulos, )
Appellant, )
)
v. ) Appeal No. 01986089
) Agency No. 4H-335-0014-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant timely appealed the agency's decision denying her request that
her complaint be reinstated for processing from the point that processing
ceased. See 29 C.F.R. �1614.402, 504(b); EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
A formal EEO complaint filed by appellant was resolved by a settlement
agreement entered into on February 24, 1998. The agreement stated in
relevant part:
The complainant will be treated fairly and equitably in her job and duty
assignments without regard to her sex.
Upon the complainant's furnishing to management of documentary evidence
of her release from the EAP program - triggered by the settlement dated
August 30, 1996 - by the EAP counselor, the disciplinary action issued
to her, dated July 25, 1996, will be removed from her records.
The record reveals that in a letter to the agency received on June
17, 1998, appellant stated that management has not complied with the
settlement agreement. According to appellant, the agency violated the
agreement because the Postmaster violated a prior grievance settlement
executed on August 30, 1996. The prior grievance settlement provided,
in pertinent part, that:
[appellant] must contact the EAP office within five (5) days...If the
EAP office determines that the employee must participate in a structured
program, the employee must participate for the length of time and degree
of participation determined by the EAP office;
[appellant] will sign a release of information so that the EAP counselor
can be in contact with the treating organization and to allow a
monthly inquiry by her supervisor with the EAP counselor to obtain only
information limited to attendance and participation in the prescribed
program.
According to appellant, in compliance with the February 24, 1998 EEO
settlement agreement, she presented a letter dated March 31, 1997 from
the EAP Counselor, which stated that she had participated and successfully
completed the requirements of the EAP. The record contains a letter dated
February 25, 1998, from appellant's representative to the agency's Labor
Relations official forwarding the required documentation in accordance
with provision 2 of the EEO agreement. Appellant stated that this letter
should have been "the end of the matter," but for the postmaster violation
of the August 30, 1996 grievance settlement. Specifically, the Postmaster
purportedly abused his authority by requesting and receiving her entire
file from the Employee Assistance Program. According to appellant,
the Postmaster attempted to dictate her treatment and involvement in
the Employee Assistance Program. Appellant maintains that the grievance
settlement only gave the Postmaster (her supervisor) the right to know
her attendance and participation in the EAP. Appellant requested that
her EEO complaint be reinstated.
In its final decision dated July 9, 1998, the agency determined that the
settlement agreement has not been breached. According to the agency,
the letter dated March 31, 1997, was a general notification provided for
in the settlement and was accepted as the documentary evidence required
in provision 2. The agency stated that the disciplinary action issued
to appellant on July 25, 1996, was removed from appellant's records
and destroyed in accordance with provision 2. The record contains a
memorandum dated June 29, 1998, from the OIC at the subject facility
stating that all documentation relating to appellant's removal has been
removed from her records and noting that appellant has bid on two recent
positions and would be allowed to bid on any position posted.
On appeal, appellant contends that her disciplinary action was not removed
from her files in a timely manner, and that it was used against her on
May 25, 1998, to deny her a position. Appellant claims that she was
the senior qualified bidder for a window position.
ANALYSIS AND FINDINGS
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final decision, 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 final decision. 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.
Settlement agreements are contracts between appellant and the agency and
it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In interpreting settlement agreements, the Commission
has applied the contract principle known as the "plain meaning rule"
which holds that where a writing is unambiguous on its face, its
meaning is determined from the four corners of the instrument without
resort to extrinsic evidence. Smith v. Defense Logistics Agency,
EEOC Appeal No. 01913570 (December 2, 1991). Moreover, other standard
contractual requirements such as the necessity of consideration, apply
in this context. Collins v. United States Postal Service, EEOC Request
No. 05900082 (April 26, 1990); Shuman v. Department of the Navy, EEOC
Request No. 05900744 (July 20, 1990); Roberts v. United States Postal
Service, EEOC Appeal No. 01842193 (May 9, 1985).
In the instant matter, appellant alleged that the agency breached the EEO
settlement agreement when the documentation regarding her removal was not
removed from her records in a timely manner. The record indicates that
appellant's representative forwarded the required documentation to the
agency on February 25, 1998. A memorandum from the agency's OIC indicates
that documentation regarding appellant's removal was removed from her
records as of June 29, 1998. We find that this was not an unreasonable
period of time for compliance with provision 2 of the EEO settlement
agreement. The agreement provided that the documentation regarding
her removal would be removed "[u]pon the complainant's furnishing to
management of documentary evidence." Absent a specific time frame,
the terms should be executed in a reasonable amount of time. See Gomez
v. Department of the Treasury, EEOC Request No. 05930921 (Feb. 10, 1994)
(where time frame for fulfillment of terms of settlement agreement is not
specified, terms must be fulfilled within a "reasonable" amount of time).
Accordingly, we AFFIRM the agency's decision finding no breach of the
EEO settlement agreement.
Finally, we note that appellant also appears to be alleging a breach of
the August 30, 1996 grievance settlement. We note, however, that any
allegations of breach of a grievance settlement should be raised through
the grievance process and are not properly raised in the administrative
EEO process.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Sept. 10, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations