01992247
03-07-2001
Shelly M. Lopez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Shelly M. Lopez v. United States Postal Service
01992247
March 7, 2001
.
Shelly M. Lopez,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01992247
Agency No. 4-H-320-0170-98
DECISION
Complainant timely appealed the agency's decision that denied her claim
that the settlement agreement entered into between the parties had been
breached.
BACKGROUND
Complainant filed an informal EEO complaint that was resolved by
a settlement agreement entered into on June 11, 1998. The agreement
stated in relevant part as follows:
1. Both parties agree that [complainant's] Route (C-3) will be given
a special route count and inspection by [Person A] during the month of
October 1998. [Complainant] will carry her route in its entirety for
6 consecutive days. [Complainant] agrees to volunteer for the Overtime
Desired list at the time of inspection. The route check will be done
from Oct 5-10, 1998.
2. Management agrees that [Person B] will attend the Interpersonal
Communication Skills Course in Potomac, Md. as soon as the first class
is available. The training record will be completed for the training
and made available for viewing by [Complainant] and [her representative]
within 2 weeks of completion unless the document has not been forwarded
to the District. [Complainant] and her representative will document
completion information.
Management agrees to remove the Letter of Warning from [complainant's]
file as soon as possible.
. . . .
5. Management agrees to make copies of form 3996's and 1571's for
[complainant] on the same day by her end of tour.
. . . .
7. Both parties agree to treat each other at all times with dignity,
respect, fairness, and courtesy. Both parties understand that
management's interests and union's interests are not always the same.
8. Both parties agree this Agreement will remain confidential except
for those with a need to know in order to implement the Agreement.
By letter dated September 27, 1998, complainant notified the agency that
it had breached the settlement agreement. According to complainant,
the agency breached the first term by postponing her special route count
until October 24, 1998. With regard to the second term, complainant
stated that although she viewed the training records, they had not
been made available to her representative. As for the fifth term,
complainant stated that it has been a constant struggle and reminder to
have management honor this provision of the agreement. Complainant stated
that in the past thirty days, she has had to request copies of 3996's
and 1571's both verbally and in writing. According to complainant, the
agency's failure to comply with the aforementioned terms also constitutes
a breach of the seventh provision. Complainant argues that she has not
been treated with dignity, respect, or fairness. Finally, complainant
maintains that the agency breached the eighth term of the settlement.
Complainant claimed that a supervisor made several comments to her about
the settlement. Complainant requested that her complaint be reinstated.
By decision dated December 17, 1998, the agency determined that it had
not breached the settlement except for the fifth term. With regard
to the first term, the agency stated that a good faith effort was
made to accommodate complainant after a date conflict developed with
the person selected by complainant to perform the inspection. As for
the second term, the agency determined that since the records were made
available to complainant, they were also available to her representative.
With respect to the seventh term, the agency stated that it is complying
with this provision by supplying the forms and honoring the agreement.
In terms of the eight provision, the agency determined that no evidence
has been presented that the agency made anyone aware of the agreement who
did not have a need to know about the settlement. As for the fifth term,
the agency acknowledged that a breach occurred. The agency, however,
stated that upon notification of the breach, it has supplied complainant
with the agreed upon forms.
On appeal, complainant states with regard to the first term that the
special route count was conducted from November 2-7, 1998, rather than
from October 5-10, 1998. Complainant further claims that the conduct of
the route count was unfair and that she was not treated with dignity,
respect, and fairness at all times. With regard to the second term,
complainant submits a statement from her representative dated December
28, 1998, which indicates that the representative has never seen the
documentation concerning the relevant individual's completion of his
Interpersonal Communications Skills Course. As for the fifth term,
complainant argues that she has not been provided with the relevant forms
in a timely fashion, and that she should not need to make continual
requests for the forms. Complainant states that her request for a
copy of form 3996 was denied on December 28, 1998. With regard to the
seventh term, complainant maintains that the route examiner expected
her to perform her duties in an unsafe and hazardous manner.
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 action, 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.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).
We note with regard to the first provision that the route inspection
occurred in November 1998 rather than from October 5-10, 1998. Therefore,
we find the agency breached provision one of the agreement by failing
to timely provide the required route inspection. We note, however,
that the agency did ultimately conduct the required route inspection
approximately one month late. We find that the agency's breach did not
result in any harm to complainant and was effectively cured.
With regard to the second term, we note that complainant's representative
stated that she has not viewed documentation concerning the relevant
official's completion of the training course. The agency has not
presented evidence that it made such documentation available to
complainant's representative. Presenting this documentation to
complainant does not constitute presentation to her representative.
Therefore, we find that the agency breached the second provision of
the agreement.
With regard to the fifth provision of the agreement, the agency has
admitted that it breached this settlement term. According to the agency,
it has since cured its breach because complainant has been supplied
with the relevant forms after she provided notification. The agency
has not provided evidence to support this position. Based upon the
records submitted by complainant, it appears that some of the requested
forms were provided to complainant, but that others may not have been
provided to her. It further appears contrary to the settlement that
complainant has often not been provided with the relevant forms by the
end of her tour each day. The agency is under an ongoing obligation to
provide complainant with copies of her 3996 and 1571 forms by the end
of her tour each day. We find that the agency has failed to comply with
provision 5 of the settlement agreement.
With regard to the seventh term of the settlement, we find that this
provision is too vague and is therefore unenforceable. As for the eighth
term, complainant has not identified a specific agency official who was
improperly aware of the settlement agreement. We find that complainant
has not submitted sufficient evidence to establish that the agency
violated provision 8 of the settlement agreement.
The agency's decision finding that the agency did not breach provisions
1, 2, and 5 of the settlement agreement is REVERSED and we REMAND the
matter for further processing in accordance with this decision and the
ORDER herein. The agency's decision finding that the agency did not
breach provisions 7 and 8 of the settlement agreement is AFFIRMED.
ORDER
The agency is ORDERED to comply with the terms of the June 11, 1998
settlement agreement by
Within 10 days of the date this decision becomes final, making the
�training record� (referred to in provision 2 of the settlement agreement)
available for viewing by complainant's representative;
Supplying to complainant copies of form 3996 and 1571 for complainant
on the same day by her end of tour.
A copy of the agency's letter notifying complainant that it will comply
with the terms of the settlement agreement must be submitted to the
Compliance Officer, as referenced herein.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
March 7, 2001
__________________
Date