0120113147
11-20-2012
Susan Wolf, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Susan Wolf,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120113147
Agency No. 4H320005310
DECISION
Complainant filed a timely1 appeal with this Commission from a Letter of Determination (Letter) by the Agency dated August 5, 2010, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. 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 giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Ormond Beach Main Office facility in Ormond Beach, Florida. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 7, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(2) [Complainant's Supervisor (CS) would] conduct a follow-up Stand-up Talk with employees to clarify exceptions to USPS policies for disabled and impaired employees.
On July 12, 2010, Complainant met with an EEOC Counselor and alleged that the Agency was in breach of the settlement agreement, and requested reinstatement of her underlying complaint. Specifically, Complainant alleged that CS did not clarify exceptions to Agency policies as part of the "Stand-up Talk" but instead told employees to see her in private if they wanted to know about such exceptions.
In its August 5, 2010 Letter, the Agency concluded it had not breached the Agreement. The Agency noted that CS said that she did hold the
Stand-up Talk [before] the entire unit addressing personal items at the cases . . . [but that she] made it clear that anyone with exceptions to the policy due to disabilities or other situations could come to her in private. She stated that she thought that anyone with personal reasons for wanting exceptions would not want to address them in an open forum on the work room floor.
The Agency found that since the "Stand-up Talk" had been given and employees were given the opportunity to address CS concerning any exceptions to Agency policy, it had complied with the Agreement and there was no 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).
In the instant case, we note that Complainant does not appear to dispute that the Agency satisfied clause 1 of the Agreement. With regard to clause 2, however, the Agreement states that the discussion of exceptions to Agency policies was to be held as part of a Stand-up Talk" and not to be conducted in private with those who may have questions. While CS's desire to maintain the privacy of employees is commendable, this goal could still have been met by holding a Stand-up talk addressing exceptions, by using hypothetical situations, for example, and then telling employees that anyone with specific questions regarding their own situation could see her in private. Because Complainant included the requirement that exceptions to Agency policies be addressed in a Stand-up Talk, it was presumably important to Complainant to have all unit employees hear and learn about such exceptions, not just those employees willing to approach CS in private. Because the Agency admits that it failed to comply with this requirement, we find that the Agency breached the Agreement. However, because the Agency has complied with clause 1, which required that CS undergo training, a benefit to Complainant that cannot be reversed, we find that reinstatement of the underlying Complaint would provide Complainant with the benefit of having the Agency partially comply with her terms, while allowing Complainant to continue with her complaint. We therefore find that rather than reinstate the complaint, the equitable remedy is specific performance. In this regard, we find that the CS must provide the Stand-up Talk with employees to clarify exceptions to Agency policies for disabled and impaired employees as part of that Stand-up Talk. During the Stand-up Talk, CS may talk about such exceptions in general terms using hypotheticals and may also tell employees who have questions about specific exceptions that affect them to see her in private.
CONCLUSION
Because the Agency breached the Agreement we REVERSE the Agency Letter and REMAND this matter to the Agency in compliance with the Order below.
ORDER
Within thirty (30) calendar days of the date of this decision becoming final, the Agency is ORDERED to have CS provide a Stand-up Talk with employees to clarify exceptions to Agency policies for disabled and impaired employees as part of that Stand-up Talk. During the Stand-up Talk, CS may talk about such exceptions in general terms using hypotheticals. CS may also tell employees who have questions about specific exceptions that affect them to see her in private.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (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 (R0610)
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 (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
November 20, 2012
__________________
Date
1 Complainant has submitted evidence indicating that this appeal was received at the EEOC on August 17, 2010 and the Agency has not claimed on appeal that the Appeal is untimely.
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0120113147
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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