0120092599
10-22-2009
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. 0120092599
Agency No. 1H-301-0039-06
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated April 29, 2009, finding that it was in compliance
with the terms of the August 4, 2006 settlement agreement into which
the parties entered. See 29 C.F.R. �� 1614.402; 1614.405; 1614.504(b.1
The 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 1400 until 1800 hours (guaranteed 4 hours, possibly more), and
adhering to her other medical limitations specified in her documentation.
[Complainant] will be asked to update her medical documentation as
required, 30 days. At such time as [complainant's] permanent request is
decided, the assignment is subject to change. [Complainant] will consult
with Manager, Distribution Operations [(MDO)] for a reporting date.
This agreement must be concurred by Acting Plant Manager [(APM)].
By pre-complaint to the agency dated October 11, 2006, 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, without appropriate justification, the agency
failed to give her work hours. Complainant stated that her colleagues
were given eight hours of work whereas she was given only four hours.
Following the remand in EEOC Appeal No. 0120071293, in its April 29, 2009
final decision, the agency concluded that it did not breach the August
4 agreement. Specifically, the agency stated that time and attendance
reports/clock rings for August 7, 2006 to October 6, 2006 indicate that
complainant reported to work on Tour 2 and worked four or more hours each
day reported. Further, the agency stated that both MDO and APM have since
retired from the agency so were unable to submit supplemental responses,
but that the current management provided affidavits stating that they
were not responsible for scheduling at the relevant time. The agency
provided copies of Employee Everything Reports for complainant for August
7 to October 6, 2006. The instant appeal from complainant followed.
On appeal, complainant stated that the agency never scheduled her to work
on tour two, only within the hours of tour two, and denied her more than
four hours of work 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, we find that, based on "the plain meaning rule,"
complainant failed to establish that the agency breached the August
4 agreement. Specifically, we find that the Employee Everything Report
shows that complainant consistently worked at least four hours between
1200 and 1800 on worked days following the execution of the settlement
agreement. In addition, complainant alleged that she was not scheduled
to work on tour two but only given work within the hours of tour two,
which seems a matter beyond the scope of the settlement agreement.
At a minimum, based on the evidence of record, we find the agency in
substantial compliance with the agreement. Hence, we AFFIRM the final
agency decision.
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
October 22, 2009
__________________
Date
1 We note that in Smith v. U.S. Postal Service, EEOC Appeal No. 0120071293
(January 8, 2009), the Commission remanded complainant's breach
allegation to the agency for a supplemental investigation of the matter.
The Commission ordered the agency to provide "evidence clearly showing
that it has complied with the settlement agreement."
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0120092599
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092599