0120090479
06-11-2010
Angela R. Runnels-Simpson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Angela R. Runnels-Simpson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120090479
Agency No. 4G-752-0352-08
DECISION
Complainant filed a timely appeal with this Commission from an
agency determination dated October 21, 2008, finding that it
was in compliance with the terms of the July 23, 2008 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.
ISSUE PRESENTED
The issue presented is whether the agency violated the terms of the July
23, 2008 settlement agreement.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
a Clerk at the Carrollton-Rosemeade Post Office in Carrollton, Texas.
Information for Pre-Complaint Counseling, at 1. On June 29, 2008,
complainant contacted an EEO Counselor alleging that she was discriminated
against on the basis of disability (shoulder) when, on June 27, 2008,
she received a second paycheck from the agency that was not correctly
coded for her to receive payment from the Department of Labor for a
February 26, 2008 on-the-job injury, and she was not paid for sick leave
even though she provided timely documentation. Id.
On July 23, 2008, complainant and the agency entered into a settlement
agreement. The settlement agreement provided, in pertinent part, that:
1. Complainant will be granted 7.97 hours per day of code 049 (OWCP)
(39.85 weekly), retroactive, as approved by the Department of Labor;
2. Management will make necessary adjustments into TACS to reflect
code 049 and sick leave adjustments;
3. Complainant will be compensated for 7.97 hours of sick leave on
June 9, 2008 and June 10, 2008;
4. Complainant will be compensated for all sick leave used in
Pay Period 9 Week 1, 2008 and Pay Period 9 Week 2, 2008, for which
documentation is provided.
By letter to the agency dated September 10, 2008, 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 the agency failed to make payroll adjustments for the
approximately 26 hours of sick leave that she requested for Pay Period 9,
Weeks 1 and 2.
In its October 21, 2008 determination, the agency concluded that it
did not breach the settlement agreement. The agency noted that the
Postmaster acknowledged to the EEO Counselor and to the Manager of Post
Operations on October 14, 2008 that complainant's time was corrected by
the Supervisor of Customer Services.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that although she received a payroll
adjustment, it was not for the amount that was settled. Complainant's
Appeal Brief, at 1. Complainant submits a July 7, 2008 letter where
she listed the payroll adjustments and corrections required for various
pay periods. Id. at 6. According to the letter, complainant requested
8.50 hours of sick leave for Pay Period 9, Week 1 and 5.73 hours of sick
leave for Pay Period 9, Week 2. Id. In addition, complainant submits
an October 17, 2008 pay stub indicating "MULTI PP ADJS PROCESSED"
and showing that she received a payroll adjustment for 9.36 hours.
Id. at 7.
In response, the agency argues that complainant raised no new contentions
on appeal and requests that the Commission affirm its determination.
Agency's Appeal Brief, at 1.
ANALYSIS AND FINDINGS
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, we find that there is insufficient evidence to
determine whether the agency has complied with the settlement agreement.
In order to determine whether a breach occurred regarding the compensation
of complainant for all the sick leave she used in Pay Period 9, Weeks
1 and 2, we must first ascertain the total amount of sick leave that
complainant actually used during that time. The record is unclear as to
whether the total amount of sick leave used during that time is 9.36 hours
as reflected by the adjustment on complainant's October 14, 2008 pay stub,
"approximately 26 hours" as stated in complainant's September 10, 2008
letter, or 14.23 hours as listed in complainant's July 7, 2008 letter.
In addition, we note that the record does not contain any documentation
from the agency regarding the amount of sick leave used by complainant
in Pay Period 9, Weeks 1 and 2.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we VACATE the agency's
determination and REMAND the matter in accordance with this decision
and the Order below.
ORDER
The agency shall supplement the record with documentation showing the
number of hours of sick leave used by complainant in Pay Period 9,
Weeks 1 and 2 and the number of hours of sick leave compensated to
complainant. If a difference exists between the number of hours used
versus compensated, the agency shall provide an explanation for the
discrepancy. Within thirty (30) calendar days of the date this decision
becomes final, the agency shall issue a new decision concerning whether
it breached the July 23, 2008 settlement agreement.
A copy of the agency's determination must be submitted to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (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 (R0408)
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 (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 11, 2010
Date
2
0120090479
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090479