01A22970_r
09-26-2002
Sheila A. Napoleon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sheila A. Napoleon v. United States Postal Service
01A22970
September 26, 2002
.
Sheila A. Napoleon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22970
Agency No. 4G-700-0143-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 2, 2002, finding that it was
in compliance with the terms of a June 11, 2001 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The settlement agreement provided, in pertinent part, that:
Upon renewal of the POS deployment, I will be provided a ninety (90) day
detail to one of the Postal Systems Coordinator (PSC) vacant positions.
I have been advised that there is no formal training for said position.
I will be provided on-the-job training by a PSC during my detail.
Additionally, at a later date, based upon my satisfactory performance,
during my initial detail, I will be considered for a second 90 day detail
to an available PSC position.
By letter to the agency dated January 24, 2002, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to detail her to one of the
PSC vacant positions and that the Manager, Finance stated there were
several opportunities she could have been placed on detail.
In its April 2, 2002 FAD, the agency found no breach. Specifically,
the agency stated that the record reveals that an agency Finance Manager
stated that at the time of her complaint, complainant bid on and was
subsequently awarded a window clerk position in the New Orleans Post
Office; and that the change in assignment added a �new element� to the
settlement agreement. The agency noted that the Finance Manager further
stated that given this �new element,� it was incumbent on complainant to
receive permission from her new manager in order to be freed from her duty
assignment, and communicate with him before any detail could be initiated.
On appeal, complainant argues that she was never informed of the PSC
detail opportunities and that her new assignment had no affect on the
settlement agreement.
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).
The Commission determines that the agency breached the settlement
agreement dated June 11, 2001. Regarding the settlement agreement, the
Finance Manager stated that the change in complainant's new assignment
added a �new element� to the original settlement agreement and that it was
complainant's responsibility to receive permission from her new manager
before any detail could be initiated. Further, the record contains the
Finance Manager's response dated March 27, 2002, concerning complainant's
breach allegation. Therein, the Finance Manager, stated that the EEO
Specialist confirmed that it was complainant's obligation, and that it
was not his responsibility to pursue complainant's availability.
The terms of the settlement agreement, however, expressly contained
an affirmative agency obligation to place complainant into a ninety
(90) day detail to one of the Postal Systems Coordinator (PSC) vacant
positions upon renewal of the POS deployment. The Commission notes
that the settlement agreement placed no requirement on complainant to
initiate any action in order to receive the identified detail assignment.
Accordingly, the agency's finding of no breach of the agreement is
REVERSED. This 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 is ORDERED to comply with the terms of the June 11, 2001
settlement agreement. Specifically, the agency shall provide complainant
a ninety (90) day detail to one of the Postal Systems Coordinator (PSC)
vacant positions. A copy of the agency's letter notifying complainant
indicating that it will provide the detail must be submitted 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 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 (M0701)
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
September 26, 2002
__________________
Date