Alinda Favors, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionJun 10, 2010
0120100809 (E.E.O.C. Jun. 10, 2010)

0120100809

06-10-2010

Alinda Favors, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Alinda Favors,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 0120100809

Agency No. 1H303002309

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated November 24, 2009 finding that it was

in compliance with the terms of the July 16, 2009 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.

The settlement agreement provided, in pertinent part, that:

(1) Management agrees to pay [complainant] administrative leave pay

for 21 days. Paperwork will be initiated by July 24, 2009, with a copy

to be supplied to [complainant];

(2) [Complainant] will be able to return to work once management

receives medical documentation that she is able to return to full duty.

(3) Management agrees to attempt to set up a meeting with both

parties as soon as [complainant] is released to do so.

(4) This agreement settles all pending MSPB matters.

By letter to the agency dated August 25, 2009, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency specifically implement its terms. Specifically, complainant

alleged that her manager, [named individual] refused to communicate with

her and that supervisor [named individual] states that she does not have

time to complete the paperwork.

In its November 24, 2009 FAD, the agency concluded that it complied with

the agreement between the parties. Specifically, the agency indicates

that on July 16, 2009 a Pay, Leave and Other Hours Adjustment request

form was completed in order to change complainant's hours from leave

without pay to administrative leave. The agency indicates further that

because the number of hours to be converted exceeded 80 hours, additional

paperwork was required. Accordingly, a Back Pay Decision/Settlement

Worksheet was executed on September 2, 2009. Following completion

of still more paperwork, a finance summary report on October 1, 2009

indicated that the required administrative leave payment to complainant

had been completed. Regarding provisions 2 and 3 of the agreement, the

agency maintains that there has been no breach. The agency contends that

complainant has not yet provided the appropriate medical documentation

indicating that complainant is able to return to work. As such, the

agency is not obligated to perform as outlined in provisions 2 and 3,

nor the agency indicates has it breached any provision of the agreement

as alleged.

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. Department of Defense,

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. 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 O 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 (5th Cir. 1984).

In the instant case, the Commission finds that complainant has failed

to demonstrate that the agency has breached the agreement as alleged.

Specifically, we note that the agreement obligates the agency to complete

paperwork to pay complainant for 21 days of administrative leave to be

initiated by July 24, 2009. The agency has provided the Commission

with documentation indicating that the appropriate paperwork was so

initiated and complainant has received administrative leave as required

under the agreement. Moreover, the Commission finds that complainant

has failed to demonstrate that the agency was specifically obligated to

perform any provision under the contract relating to the communication

between complainant and her manager or that the agency breached any such

provision. Finally, we find that complainant has not demonstrated that

the agency has breached provisions 2 and 3 of the agreement as alleged.

Accordingly, the Commission finds that the agency's determination that it

complied with the agreement between the parties was proper. The agency's

decision in that regard is affirmed for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 (S0408)

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 (Z1008)

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

June 10, 2010

__________________

Date

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0120100809

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120100809