0120100152
08-12-2011
Susan M. Filosi, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Headquarters) Agency.
Susan M. Filosi,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Headquarters)
Agency.
Appeal No. 0120100152
Agency No. 6U-000-0001-05
DECISION
Complainant notified the Agency’s Acting Manager of Equal Employment
Opportunity (EEO) Field Operations that she believed the Agency breached
their settlement agreement. After doing this by letter dated September
24, 2009, she filed an appeal on September 29, 2009, alleging the same
thing. While the appeal was pending, the Agency made a final Agency
determination (FAD) dated November 25, 2009, finding it complied with
the settlement agreement. Since the appeal was pending when the FAD
was issued, it is timely and accepted. See 29 C.F.R. § 1614.402;
29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
At the time of events just prior to her claim of breach, Complainant
worked as a National Accounts Representative, EAS-25 at the Agency’s
Greater Boston CS District facility. While the facility is located in
Windsor, CT, Complainant worked at an alternative location. On March 9,
2006, she and the Agency entered into a settlement agreement to resolve
her EEO complaint and claims. The settlement agreement provided, in
pertinent part, that:
…the Agency agrees to, within thirty (30) days of the execution of this
Agreement, appoint Complainant to the National Account Representative
(EAS-25) position…. Complainant’s annual salary upon the effective
date of this appointment will be [dollar amount designated] per year….
Effective April 1, 2006, the Agency promoted Complainant to the position
of National Accounts Representative, EAS-25, at the agreed upon salary.
On September 24, 2009, the Complainant gave the Agency a written notice
of breach. She wrote that as a result of a reduction in force (RIF),
her National Accounts Representative position was eliminated. She wrote
that in light of the RIF, she applied for various positions, and was
offered the job of Strategic Account Manager, EAS-23. Complainant wrote
that she accepted the offer, and was surprised when she received her
Notification of Personnel Action, PS Form 50 that it indicated a saved
grade (of EAS-25) for only two years, rather than the grade agreed to
in the settlement agreement. Complainant was placed in this position
effective August 29, 2009.
In its FAD, the Agency found that it complied with the settlement
agreement. It reasoned that it placed Complainant in the position of
National Accounts Representative, EAS-25, on April 1, 2006, as agreed,
and she remained there until a restructure in the Sales department
eliminated her position. The Agency found that when it entered into the
settlement agreement, there was no way it could predict the position
would be eliminated more than three years into the future, and the
settlement agreement did not guarantee Complainant would remain as an
EAS-25 manager indefinitely.
On appeal, Complainant reiterates the contentions that were in her notice
of breach.
ANALYSIS
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. Dep’t of Def., 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. Dep’t 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. U.S. Postal Serv.,
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 has held that a settlement agreement that places a
complainant into a specific position, without defining the length of
service or other elements of the employment relationship, will not
be interpreted to require the agency to employ the complainant in the
identical job specified forever. Papac v. Department of Veterans Affairs,
EEOC Request No. 05910808 (December 12, 1991) and Elliott v. United
States Postal Service, EEOC Appeal No. 01970474 (August 27, 1997).
In the absence of a specific time frame in a settlement agreement, it is
interpreted to be for a reasonable amount of time. Parker v. Department
of Defense (Defense Logistics Agency), EEOC Request No. 05910576 (August
29, 1991)
Applying the above principles, we find that the Agency complied with the
settlement agreement, and did not breach it. Complainant was promoted,
as agreed. The elimination of her position more than three years later,
via a restructuring, did not breach the settlement agreement, nor did
the related placement of Complainant into an EAS-23 position.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 (S0610)
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. 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 (Z0610)
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
August 12, 2011
__________________
Date
2
0120100152
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100152