Patricia K. Poulos, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 10, 1999
01986089 (E.E.O.C. Sep. 10, 1999)

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