0120092980
10-22-2009
Donna N. Keener, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donna N. Keener,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092980
Agency No. 4C250005707
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 3, 2009, finding that it was in
compliance with the terms of the September 5, 2007 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) [Complainant] will be treated equally and fairly with other
carriers in her unit.
(2) Schedule changes in [complainant's] unit may be made to provide
optimum service to customers when mail volume dictates.
(3) The postmaster will seek an online training course for effective
communication and have all carrier annex supervisors complete this course
by October 31, 2007.
By letter to the agency dated April 22, 2009, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
believed she was not being treated "equally and fairly with other
carriers" because her start time was changed. Complainant also argued
that the change in schedule was not made to provide optimum service
to customers. As such, complainant sought assistance from the agency's
EEO office.
In its June 3, 2009 FAD, the agency concluded that there was no breach of
the settlement agreement. The FAD indicated that the change in schedule
is part of complainant's most recent EEO complaint. The FAD also held
that management did not breach provisions 1 and 2. As such, the FAD
concluded that the agency did not violate the settlement agreement.
Complainant appealed arguing that she was not being treated equally
and fairly.
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, complainant asserts that she was not treated equally
or fairly in violation of provision (1) of the settlement agreement when
her hours were changed. We find that such a provision is too vague to
allow a determination as to whether the agency has complied with it. See
Williams v. United States Postal Service, EEOC Appeal No. 01992286 (March
1, 2000) (citing Dove v. United States Postal Service, Appeal No. 01963814
(January 3, 1997) (provision requiring management to act professional
toward complainant was too vague to be enforceable). Therefore, provision
1 is void and unenforceable.
We also note that complainant has not shown that the change in hours
is a violation of provision (2) of the settlement agreement. We note
that provision (2) does not dictate complainant's schedule. As such,
we find that the agency has not violated the settlement agreement.
Further, we note that complainant is alleging that subsequent acts
of discrimination violated the settlement agreement, which should
be processed as a separate complaint of discrimination pursuant to �
1614.106. See 29 C.F.R. � 1614.504(c). Therefore, the agency was correct
in referring to complainant's pending EEO matter rather than treating
the change in schedule as a breach of the settlement agreement.
CONCLUSION
Accordingly, we AFFIRM the agency's determination of no breach.
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
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0120092980
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092980