01976313
03-02-1999
Deborah E. Scott, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Deborah E. Scott v. United States Postal Service
01976313
March 2, 1999
Deborah E. Scott, )
Appellant, )
)
v. ) Appeal No. 01976313
) Agency Nos. 4G-7301162-94
William J. Henderson, ) 4G-7301166-94
Postmaster General, ) 4G-7301197-94
United States Postal Service, ) 4G-7301037-95
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision not to reinstate
her complaint of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. �1614.402(a); EEOC Order No. 960, as amended.
The record reflects that appellant pursued the EEO complaint process on
four separate complaints (Complaint Nos. 4G-7301162-94; 4G-730166-94;
4G-7301197-94; and 4G-7301037-95). The record does not contain copies
of these complaints. However, a review of the record reflects that
the complaint addressed, in pertinent part, two suspensions issued to
appellant in 1994.
The record reflects that appellant and the agency engaged in negotiations
for settlement of the complaints, which included discussions relating
to expungement of disciplinary actions from appellant's personnel file.
In conjunction with this matter, an agency Labor Relations Specialist
wrote to appellant a letter dated December 6, 1996. Therein, the
Labor Relations Specialist stated that appellant's attorney advised him
that appellant had agreed to the discussed settlement of appellant's
EEO complaints; and that appellant's attorney requested that the
Labor Relations Specialist send appellant the original copies of two
disciplinary actions (suspensions). The Labor Relations Specialist
informed appellant that he was transmitting the original copy of one
suspension action, but that he was unable to locate the original copy
of the second suspension action and as a consequence was transmitting
merely a copy of the second suspension action. The Labor Relations
Specialist stated that he anticipated appellant's imminent signing of
the settlement agreement, and indicated that appellant would "no longer
have any discipline in [her] file or in [her] OPF."
By letter dated December 11, 1996, appellant acknowledged receipt of
the letter from the Labor Relations Specialist, dated December 6, 1996.
On the same day, appellant signed a settlement agreement that had
previously been signed by an agency official on December 3, 1996, and
by appellant's attorney on December 5, 1996. The settlement agreement
indicated that appellant would withdraw the EEO complaints based on the
agency taking the actions articulated in the following four provisions
of the settlement agreement:
1. All two suspension actions taken against me [appellant] cited in
these cases will be expunged from my file.
2. The originals of these disciplinary actions will be sent to me.
3. I will suffer no retaliation for using the EEO Appeal process.
4. I will receive $7500.00 lump sum payment.
On or about December 31, 1996, the agency issued appellant a check for
$7,500.00, in accordance with provision 4 of the settlement agreement.
The record reflects that in July 1997, appellant submitted a letter
to the Labor Relations Specialist, inquiring into the steps the Labor
Relations Specialist had taken in regard to compliance with the settlement
agreement.
By letter dated July 11, 1997, appellant alleged that the agency breached
provisions 1 - 3 of the settlement agreement. Regarding provision 1,
appellant alleged that on June 13, 1997, upon review of her Official
Personnel Folder, she discovered a memorandum that was written by an
agency Human Resources Manager, requesting that appellant's name be
excluded from a 1995 EAS Merit program as a result of being suspended on
two occasions in 1994. The record contains a copy of the memorandum
from the Human Resources Manager, dated May 28, 1996. Therein, the Human
Resources Manager informs another Human Resources office that he wanted
to see appellant excluded from the 1995 EAS merit pay program because
she was suspended twice in 1994 for misconduct.
Regarding provision 2, appellant alleged that only one of the originals of
the two suspensions was returned to her by a Labor Relations Specialist,
as he claimed that he could not locate the original of the second
suspension. Regarding provision 3, appellant argues that the agency
acted in reprisal against her by forcing her to resign. Specifically,
appellant alleged that in June 1997, she received a job offer that her
physician had previously stated was too stressful for her, causing her
to resign.
On July 15, 1997, appellant filed a formal complaint (Complaint
No. 4G-7300138-97), alleging that she was the victim of unlawful
employment discrimination on the bases of reprisal. Appellant's complaint
was comprised of the same matter that was addressed in her allegation
of breach of provision 4 of the settlement agreement (received a job
offer that was too stressful for her, causing her to resign).<1>
On July 30, 1997, the agency issued a final decision finding no breach
of the settlement agreement of December 11, 1996. Regarding provision
1, the agency stated that although it determined that this provision
was not breached, it also appeared as if appellant untimely raised this
allegation. Specifically, the agency noted that the memorandum of May
28, 1996, was in existence for approximately seven months prior to the
date that the settlement agreement went into effect, in December 1996.
On appeal, appellant reiterates matters raised in her letter alleging
settlement breach, dated July 11, 1997. Appellant also argues that she
challenges the agency's decision to deny her 1995 EAS merit pay.
In response, the agency makes the following arguments. Regarding
provision 1 of the agreement, the agency argues that the May 28, 1996
memorandum that made reference to her suspensions is not a suspension
document; and that provision 1 does not require that all references to
the settlement agreement be expunged, but that only the two disciplinary
actions be expunged from appellant's file. The agency also argues
that upon being made aware of appellant's objections to the existence
of the May 28, 1996 memorandum, the agency removed this document from
appellant's Official Personnel File.
Regarding provision 2, the agency argues that appellant demanded that the
documents relating to her suspensions be sent to her prior to signing the
settlement agreement; that appellant was sent two suspensions documents
and was informed that only one original could be found; and that after
receipt of these documents, appellant signed the settlement agreement;
and that by signing the agreement, appellant agreed to the terms of the
settlement relating to provision 2.
Regarding provision 3, the agency argues that because appellant
alleged breach of this "no reprisal clause," the allegation was
processed separately, and was accepted for investigation in Complaint
No. 4G-7300138-97.<2>
Regarding provision 4, the agency notes that appellant received $7,500.00
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, the complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30
days of the date when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
Provision 1 of the settlement agreement dictated an agency obligation to
expunge "all two suspension actions taken" against appellant. The record
reflects that the suspension actions were expunged. However, upon
appellant's resignation from agency employment in June 1997, appellant
discovered the existence of a memorandum in her Official Personnel
Folder, dated May 28, 1996, that made reference to the two suspensions.
The agency argues that the memorandum is not a "suspension document" and
that the settlement agreement does not require that all references to
the suspensions be expunged, merely that the two suspension actions be
expunged from appellant's Official Personnel Folder. We find, however,
that a reasonable interpretation of provision 1 would require expungement
of the suspension actions, as well as any references to the suspension
actions from other sources. We find, however, that to the extent that
the agency breached provision 1 by its failure to expunge the memorandum
of May 28, 1996, that breach has been cured. We specifically note that
the agency has indicated that upon notification of appellant's objection
to the presence of the May 28, 1996 memorandum in her Official Personnel
Folder, the memorandum was removed. In light of our determination
that any breach of provision 1 has been cured, we find it unnecessary
to address the agency's finding in its final decision that appellant's
allegation of breach of provision 1 was untimely raised.
Regarding provision 2, the Commission acknowledges that the terms of this
provision provide that the originals of the suspension actions be sent
to appellant. A review of the record reflects, however, that prior to
appellant's signing the agreement, she was put on notice by the agency
that only one original suspension action was found, and that merely a copy
of the second suspension action was available. Appellant acknowledged
this situation and entered into the settlement agreement despite being
so apprized by the agency. Given these circumstances, we cannot find
settlement breach since appellant acquiesced to the agency's inability
to produce two original suspension actions prior to entering into the
agreement.
Finally, we note that appellant alleges breach of provision 3, the
"reprisal clause," when the agency purportedly made her a job offer that
was too stressful for her, causing her to resign. The Commission has held
that an allegation of reprisal in violation of a settlement agreement's
"no reprisal" clause is to be processed as a separate complaint rather
than as a breach of the settlement agreement. Bindal v. Department
of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990).
Additionally, 29 C.F.R. �1614.504(c) provides that "[a]llegations that
subsequent acts of discrimination violate a settlement agreement shall be
processed as separate complaints . . ." We note that the matter raised
in appellant's allegation of breach of provision 3 has been accepted
for investigation in a separate complaint (Complaint No. 4G-7300138-97).
We note that on appeal, appellant argues that the agency improperly
denied her EAS Merit Pay in 1995. This matter was not the subject of the
settlement agreement. Appellant is advised that if she wishes to pursue,
through the EEO process, this additional allegation she raised on appeal,
she shall initiate contact with an EEO Counselor within 15 days after
she receives this decision. The Commission advises the agency that if
appellant seeks EEO counseling regarding the new allegation within the
above 15-day period, the date appellant filed the appeal statement in
which she raised this allegation with the agency shall be deemed to be
the date of the initial EEO contact, unless she previously contacted a
counselor regarding this matter, in which case the earlier date would
serve as the EEO Counselor contact date. Cf. Alexander J. Qatsha
v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998).
Accordingly, the agency's decision finding no breach of the settlement
agreement of December 11, 1996, was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Mar 2, 1999
____________________________
DATE Ronnie Blumenthal, Director
1By letter dated August 26, 1997, the agency accepted this complaint for
investigation.
2On appeal, the agency notes that appellant has inadvertently identified
the matter raised in the instant appeal as relating to Complaint
No. 4G-7300138-97.