0120093329
11-19-2009
Sandra Castellano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Sandra Castellano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120093329
Agency No. 4A070014808
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 30, 2009, finding that it was
in compliance with the terms of the April 29, 2008 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 April 29, 2008 settlement agreement provided, in pertinent part,
that:
(1) Management agrees to bring [complainant] back on her bid job no
later than two weeks from this date.
(2) [Complainant] agrees to hold her bid position, regardless of
whether or not there is security on her Mobile route.
By letter to the agency dated February 13, 2009, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the Postmaster would not allow her to perform her bid
position (Job #032, Clerk - Window, Mobile Post Office Unit), as agreed
to in the settlement agreement, on a daily basis, but was instead treated
as an unassigned regular assigned to perform a wide range of duties.
In its June 30, 2009 FAD, the agency concluded that it did not breach
the settlement agreement. The agency noted affidavit testimony that
agency management had decided to begin phasing out the Mobile Unit
in Jersey City. Therefore, while the unit, where complainant's bid
position was located, had previously operated five days per week for
the entire day, it was now operating at a significantly reduced schedule
(four days per week for two and a half hours per day) with the goal of
terminating it altogether in June 2009. Therefore, the agency argued
that it no longer had work available within complainant's bid position
to provide her with full-time work.
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, we find that the settlement agreement should be
voided. We note that when complainant signed the settlement agreement she
believed she was being returned to her bid position which had operated
five days a week. However, due to the phasing out of the mobile units,
and the new reduced schedule, the agency did return her to the full
bid position operating five days a week. We note that the agency,
in its FAD, conceded that management was aware of the phasing out of
the mobile units as early as February 2008, well before it signed the
settlement agreement with complainant. The agency has not, however,
shown that complainant was aware of the impending changes occurring in
the mobile units which would result in a reduction of days and hours in
her bid position, eventually leading to its elimination in June 2009.
Without this knowledge, we find that the agency and complainant had
divergent interpretations of the settlement agreement. As such, we
determine that there was no meeting of the minds in the execution of the
settlement agreement. The Commission has held that a binding settlement
agreement requires a contemporaneous meeting of the minds. Brown
v. Department of Defense, EEO Request No. 05940628 (November 3, 1994),
Mullen v. Department of the Navy, EEOC Request no. 05890349 (May 18,
1989). We therefore conclude that the settlement agreement is void.
Accordingly, we VACATE the agency's determination of no breach, and REMAND
the matter for reinstatement of the underlying complaint in accordance
with the ORDER below.
ORDER
The agency is ordered to reinstate complainant's underlying complaint
and resume processing from the point processing ceased as a result of
the settlement agreement, in accordance with 29 C.F.R. � 1614.108 et
seq. The agency shall acknowledge to complainant that it has received
the remanded claim within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to complainant a copy
of the investigative file and also shall notify complainant of the
appropriate rights within one hundred fifty (150) calendar days of the
date this decision becomes final, unless the matter is otherwise resolved
prior to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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)
(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
November 19, 2009
__________________
Date
2
0120093329
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093329