0120071293
01-08-2009
Asia A. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Asia A. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071293
Agency No. 1H-301-0039-06
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated December 12, 2006, finding that it was in
compliance with the terms of an August 4, 2006 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The August 4, 2006 settlement agreement provided, in pertinent part,
that:
"[Complainant], while her request for reasonable accommodations for
permanent disability is being processed, will be temporarily accommodated
on Tour 2; assigned to the SPBS (or with available duties), with hours
from 4:00 p.m. until 1800 hours (guaranteed 4 hours, possible more) and
adhering to her other medical limitations specified in her documentation.
Counselee will be asked to update her medical documentation as required,
30 days. At such time as Counselee's permanent request is decided, the
assignment is subject to change. Counselee will consult with [a named
Manager, Distribution Operations] for a reporting date. This agreement
must be concurred by [a named Acting Plant Manager.]"
By PS Form 2564-A "Information for Pre-Complaint Counseling" to the
agency dated October 11, 2006, complainant claimed breach. Specifically,
complainant stated "I sign an EEO resolution on 4 Aug 2006, stating
that I could possibly work more hours. I have been denied extra hours
without justification. I work on the SPBS with other PTF's who are
allowed to work eight hours. I'm only being allowed to work 4 hours."
In its December 12, 2006 final decision, the agency found no breach.
The agency stated that the Manager Distribution Operations (MDO),
who signed the agreement, and the Supervisor Distribution Operations
(SDO), stated that the settlement agreement was honored. The agency
further determined that MDO and SDO stated that complainant was given the
guaranteed four hours or more on work days that she reported to work.
The agency determined that MDO and SDO stated that during the relevant
time, complainant's attendance was not regular and she did not report
to work as scheduled. The agency determined that based on the time and
attendance records of complainant's work hours for the relevant period,
complainant was scheduled for the guaranteed four work hours as specified
in the agreement. Furthermore, the agency stated that complainant did
not dispute that she did in fact received the guaranteed four work hours
per day scheduled.
On appeal, complainant argues that she "has never worked on Tour II,
after the signing of the agreement." Complainant further argues that
management knowingly assigned her hours outside of Tour II, and denied
her right to work more hours "without justification."
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 record contains insufficient evidence for us
to determine whether a breach of the settlement agreement has occurred.
We note, for example, that the agency's final decision finding no breach
is predicated upon statements by MDO and SDO. However, the record
contains no affidavits from MDO and SDO indicating that they purportedly
fulfilled the obligations under the terms of the settlement agreement.
Given this lack of evidence, we are unable to ascertain whether the
agency complied with the settlement agreement. Accordingly, the agency's
finding of no breach of the settlement agreement is VACATED. This matter
is REMANDED to the agency for further processing in accordance with the
ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing that
it has complied with the settlement agreement. The supplementation of
the record shall include any documentation, such as an affidavit from
the agency's MDO and SDO, indicating whether complainant was assigned
to the SPBS on Tour 2 with the hours from "4:00 p.m. until 1800 hours
(guaranteed 4 hours, possibly more)" following the execution of the
settlement agreement. Within thirty (30) calendar days of the date this
decision becomes final, the agency shall issue a new decision concerning
whether it breached the August 4, 2006 settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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, D.C. 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 (M0408)
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 19848,
Washington, D.C. 20036. 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
January 8, 2009
__________________
Date
2
0120071293
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071293