01995459
02-24-2000
Bonnie Howerton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Bonnie Howerton, )
Complainant, )
)
v. ) Appeal No. 01995459
) Agency No. 4-I-630-1135-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely appealed the agency's decision that denied her
claim that the settlement agreement entered into between the parties
had been breached.<1> See 64 Fed. Reg. 37,644, 37,659 (1999) (to
be codified and hereinafter cited as 29 C.F.R. �1614.402(a)) and 64
Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited
as 29 C.F.R. �1614.504(b).<2>
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Complainant filed a formal EEO complaint wherein she claimed that she was
discriminated against on the basis of her sex (female) when on April 17,
1996, the Postmaster instructed her to make an appointment to attend
the Employee Assistance Program.
The complaint was accepted for investigation. Subsequent to the
investigation, complainant requested a hearing before an EEOC
Administrative Judge. The complaint was resolved by a settlement
agreement entered into on May 28, 1998. The agreement stated in relevant
part that:
The agency agrees that it cannot order any employee to attend the Employee
Assistance Program (EAP). The agency may refer an employee to EAP.
Further the parties agree that the EAP Counselors shall set up an
appointment with the Columbia, Illinois Post Office and the Postmaster and
complainant ... shall attend a program if required by the EAP Counselors.
By letter dated April 30, 1999, complainant notified the agency that it
had breached the settlement agreement. According to complainant, the term
of the agreement providing that the agency cannot order any employee to
attend the Employee Assistance Program was violated when a city carrier,
other than complainant, was involuntarily sent by the Postmaster to the
Employee Assistance Program. As a remedy, complainant requested that
her complaint be reinstated from the point that processing ceased.
In its response dated May 10, 1999, the agency determined that the
settlement agreement had not been breached. The agency stated that the
underlying complaint was an individual complaint and that the settlement
agreement applied only to complainant and not all employees.
On appeal, complainant reiterated her contention that the agency failed
to comply with the provision of the settlement agreement that stated no
employee could be ordered to attend the Employee Assistance Program.
In support of her position, complainant submits a statement from the
employee who allegedly was sent to the Employee Assistance Program.
This employee claims that the Postmaster required that she go to the
Employee Assistance Program in February 1999. Complainant also raised for
the first time a claim that the agency has not fulfilled the provision
requiring that EAP Counselors set up an appointment with the Columbia
Post Office, and that the Postmaster and complainant shall attend a
program if required by the EAP Counselors.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
cited as 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.
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 action. 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.
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).
In the instant matter, complainant claimed that the agency breached the
settlement agreement by
sending an employee to the Employee Assistance Program. The provision
at issue states that the agency agrees that it cannot order �any
employee to attend the Employee Assistance Program.� (emphasis added).
The agency may refer an employee to EAP. We find that complainant
has established that the agency failed to comply with this term of the
settlement. The language of the relevant provision does not restrict its
applicability only to complainant. The term refers to any employee and
the record indicates that an employee was required to go to the Employee
Assistance Program in February 1999. We find that the agency breached
this provision of the settlement agreement. The proper remedial relief
is to reinstate the complaint for further processing. Accordingly,
the agency's final decision finding that there was no breach of the
settlement agreement is hereby REVERSED. This matter is REMANDED for
further processing pursuant to the ORDER below.
Finally, we note that complainant also claimed that the agency breached
the settlement when it failed to have EAP Counselors set up an appointment
with the Columbia, Illinois Post Office. We find, however, that in light
of our decision finding that the agency has breached another provision
of the agreement, we need not address this additional breach allegation.
ORDER
The agency is ORDERED to reinstate the complaint and resume processing
of the complaint from the point processing ceased. Within fifteen (15)
calendar days of the date this decision becomes final, the agency shall
submit a written request for a hearing to the appropriate EEOC District
Office. A copy of the agency's request should be provided to complainant
and must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
February 24, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1Complainant claimed that she mailed her appeal to the
Commission and to the agency on May 15, 1999. The agency received
the appeal on May 19, 1999; however, the Commission apparently did not
receive complainant's submission. We note that complainant apparently
addressed a copy of her appeal to the Commission's St. Louis District
Office. We further note that the agency's response dated May 10, 1999,
did not direct complainant to file an appeal with the Commission.
According to complainant, she learned on June 29, 1999, that the
Commission's Office of Federal Operations in Washington, D.C. had not
received her appeal, and therefore she submitted the appeal by fax
transmission on June 30, 1999.
2 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.