0120092404
06-24-2010
Bobbie J. Bertholf, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Bobbie J. Bertholf,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120092404
Agency No. 5114295
DECISION
Complainant filed an appeal with this Commission from a letter of
determination by the Agency dated April 1, 2009, finding that it was in
compliance with the terms of the December 16, 1986 settlement agreement
into which the parties entered. For the following reasons the Commission
REVERSES the Agency's letter of determination.
BACKGROUND
The parties entered into a settlement agreement on December 16, 1986,
which provided, in pertinent part, that:
(4) The [C]omplainant will be provided $4,900.00 in addition to any
monies previously paid for time frames in question;
(5) The marginal evaluation given to the [C]omplainant on 9-12-83 will
be voided and removed from the [C]omplainant's record; and
(6) The [C]omplainant will remain in her current position, however
the starting time shall become 5:30 AM effective 1-3-87. Saturday and
Sundays will remain the non-scheduled days off. Hours are permanent.
Complainant filed an Information for Pre-Complaint Counseling dated
February 11, 2009, alleging that the Agency was in breach of the
settlement agreement, and requested that the Agency specifically implement
its terms. Specifically, Complainant alleged that on February 9, 2009,
the agency issued her a letter ordering her to report to work on February
28, 2009, at 4:00 a.m.
In its April 1, 2009 determination, the Agency noted that the Bakersfield
Plant Manager indicated that Complainant's start time was adjusted for
operational reasons. The Agency stated that there was an increase of
manual distribution mail that needed to be processed earlier in the
morning. The Agency stated that this operational need caused the Agency
to adjust the schedules of approximately three or four other similarly
situated limited duty employees. The Agency stated that although the
Plant Manager was aware of the agreement when the decision was made to
change Complainant's report time, he felt the age of the settlement and
the fact that all the extenuating circumstances that brought rise to
the original settlement are so old and far removed from Complainant's
current work environment, that the minor adjustment to Complainant's
begin tour could be made. The Agency determined that it did not breach
the settlement agreement.
On appeal, Complainant stated that the settlement agreement was breached
by the current Plant Manager. Complainant stated that she gave up a
great deal for the agreement and wishes for it to be upheld.
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. Dep't 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. Dep't 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. 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, 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 present case, according to the terms of the December 1986
settlement agreement, the Agency agreed to change Complainant's start
time to 5:30 a.m. effective January 3, 1987. Further, the Agency agreed
the change in hours was "permanent." The Agency noted that it complied
with the terms of the settlement agreement by keeping Complainant in the
same schedule for 22 years, which it states was more than a reasonable
amount of time. In the present case, we find the Agency breached
the December 1986 agreement by changing Complainant's start time to
4:00 a.m. although the agreement stated that the change in hours was
"permanent." We note that other than stating the change was due to
operational needs, the Agency does not show that it was impossible
to comply with the terms of the agreement. Although the Agency in its
decision mentions the collective bargaining agreement as possibly being
a reason to move complainant's start time, the Agency has not submitted
any evidence showing that it would be a violation of the collective
bargaining agreement to keep Complainant at the 5:30 a.m. start time in
accordance with the EEO settlement agreement.
CONCLUSION
The Agency's letter of determination is REVERSED and the matter is
REMANDED to the agency for further processing in accordance with the
Order herein.
ORDER
Within 30 days of the date this decision becomes final, the Agency shall
change Complainant's starting time to 5:30 a.m. The Agency is further
directed to submit a report of compliance, as provided in the statement
entitled "Implementation of the Commission's Decision." The report shall
include supporting documentation verifying that the corrective action
has been implemented. The Agency shall send a copy of the report,
with supporting documentation, to Complainant.
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 24, 2010
__________________
Date
2
0120092504
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092404