Ronella S. Grisham v. United States Postal Service 01982389 April 30, 1999 Ronella S. Grisham, ) Appellant, ) ) v. ) Appeal No. 01982389 ) Agency No. 4E-852-1072-96 William J. Henderson, ) Postmaster General, ) United States Postal Service, ) Agency. ) ) DECISION On February 5, 1998, appellant filed a timely appeal from a January 20, 1998 final agency decision wherein the agency determined it was not in breach of the settlement agreement. See 29 C.F.R. §§1614.504, .402(a). In exchange for withdrawing three complaints, appellant and the agency entered into a settlement agreement on February 12, 1997, which provided, in relevant part, as follows: 1. Work hours will be changed to 7:30AM-4:00PM Tues-Friday and 6:00AM-2:30PM on Sat. SDO's are Sun/Mon. 2. [Person A] will no longer be involved in supervising the complainant. The complainant will report to the [Manager] Customer Services when her regular supervisor is not available. 3. Complainant will be provided a chair with arm rest. The agreement was signed by appellant and Person B, then an agency Manager of Customer Services. In letters dated December 30, 1997, and January 6, 1998, appellant notified the agency that it was in breach of paragraph 2 of the settlement agreement. Specifically, appellant alleged that on December 26, 1997, Person A gave her a "fact finding" for allegedly delaying delivery of mail and that Person A was ordered to do so by Person C. In determining there was no breach, the agency noted in its final decision that Person C, the current Manager of Customer Services, indicated that he was not aware of the settlement agreement, but that having seen the agreement subsequently, he would honor its terms. The agency also stated that appellant initiated a request for EEO counseling regarding the fact finding. On appeal, appellant contends that Person A and Person C were the agency officials named in the three complaints that she withdrew in exchange for the settlement agreement; that Person C's statement that he was unaware of the settlement agreement was untrue; and that Person B told her that he had informed Person A that he was not to have anything to do with appellant. In addition, appellant contends that the agency was negligent in not informing Persons A and C of the settlement agreement and that it was the practice of the agency not to have its managers and supervisors comply with EEO settlement agreements, noting that Person A and Person C have violated every EEO complaint that she has ever settled with the agency. Appellant also notes that she withdrew her request for informal counseling regarding the fact finding. In response to the appeal, the agency states that Person B was no longer assigned to appellant's work unit and that Person C was unaware of the terms of the settlement agreement until appellant advised him that Person A was not to supervise her.<1> The agency also re-asserts that appellant requested EEO counseling in Agency No. 4E-852-0065-98 regarding the December 26, 1997 fact finding but that she withdrew the allegation as a result of a remedy received through the grievance process. The record contains an Information for Precomplaint Counseling for Agency No. 4E-852-0065-98. Therein, appellant alleged that Person C returned to the Maryvale Post Office in August 1997, and resumed his continued harassment of her by issuing orders on December 11, 1997 to her supervisor for a fact finding and that on December 26, 1997, Person A gave her a fact finding. The Information for Precomplaint Counseling also reflects that the fact finding was issued by Person A and that it concerned theft, mistreatment, destruction of or failure to protect mail, or purposely delaying the timely delivery of mail. Appellant also alleged in the Information for Precomplaint Counseling that Person A charged her with incomplete mail disposition. A Withdrawal of Request for Counseling in Agency No. 4E-852-0065-98 contained in the record reveals that appellant withdrew her request for counseling and she therein noted that she was vindicated in the grievance process regarding the fact finding.<2> EEOC Regulation 29 C.F.R. §1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties shall be binding on both parties. If the complainant believes that the agency has failed to comply with the terms of a settlement agreement, then the complainant shall notify the EEO Director of the alleged noncompliance. 29 C.F.R. §1614.504(a). The complainant may request that the terms of the settlement agreement be specifically implemented or request that the complaint be reinstated for further processing from the point processing ceased. Id. EEOC Regulation 29 C.F.R. § 1614.504(b) requires an agency to resolve the matter and to respond to the complaint, in writing. Pursuant to §1614.504(b), 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. The Commission is authorized pursuant to 29 C.F.R. §1614.504(c) to order the agency to comply with the terms of the agreement or, alternatively, to order the agency to reinstate the complaint. Settlement agreements are contracts between the appellant and the agency and it is the intent of the parties as expressed in the contract, and not some unexpressed intention, that controls the contract's construction. Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th Cir. 1938). In reviewing settlement agreements to determine if there is a breach, the Commission is often required to ascertain the intent of the parties and will generally rely on the plain meaning rule. Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29, 1994) (citing Hyon v. U.S. 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, then its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. Id. (citing Montgomery Elevator v. Building Engineering Service, 730 F.2d 377 (5th Cir. 1984)). Upon review, we find that the agency breached paragraph 2 of the settlement agreement when Person A issued appellant a fact finding, an action we find was supervisory in nature.<3> That Person C was allegedly unaware of the settlement agreement did not excuse the agency from compliance with the terms of the agreement. Although the agency is in breach of one provision of the settlement agreement, we will exercise our discretion and order specific implementation of the settlement agreement. Since the fact finding issued by Person A was in clear violation of paragraph 2 of the settlement agreement, equitable consideration dictates that the case be remanded to the agency for it to comply with paragraph 2 and to determine whether any record of the fact finding exists in appellant's official personnel file or in any supervisory record, to expunge any such records and to provide sufficient documentation regarding the expungement or the non-existence of such records. Consistent with our discussion herein, the agency's final decision is REVERSED and the matter is REMANDED to the agency for further processing in accordance with the Order below. ORDER The agency is ORDERED to take the following actions: 1. The agency shall provide adequate documentation that it has informed Person A that he is not to engage in the supervision of appellant. If Person A no longer works as a supervisor or for the agency, the agency shall produce documentation establishing this fact. 2. The agency shall conduct a supplemental investigation to determine whether a record of the fact finding given by Person A exists in appellant's official personnel or supervisory files and provide documentation that it has conducted the investigation and submit its results. The investigation shall include, but is not limited to, an inquiry of appropriate personnel officials and appellant's supervisors. If, for example, the agency is unable to obtain an affidavit, the agency shall provide an explanation why an affidavit cannot be obtained. 3. If any record of the fact finding exists in appellant's official personnel files or supervisory files, the agency shall produce evidence, including affidavits, establishing that such records have been expunged. If no record of the fact finding exists in appellant's official personnel or supervisory files, the agency shall provide evidence, by affidavit, indicating how it determined that no such record exists. 4. All actions shall be completed within 30 calendar days of the date that this decision becomes final. All reports, affidavits, and letters establishing that the agency has completed provisions 1, 2, 3, and 4 of the Order must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595) 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 appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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 appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410. 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 (R0993) 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. 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: April 30, 1999 DATE Ronnie Blumenthal, Director 1Other than its assertion, the agency did not provide any statement from Person C. 2The grievance records are not contained in the record. 3 Although a "fact finding" is not specifically defined in the record, what is clear is that a fact finding is an action that is undertaken by a supervisor.