0120064324
03-18-2009
Elise Winder, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Elise Winder,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120064324(formerly 01A64324)
Agency No. 05-321-SSA
DECISION
On July 12, 2006, complainant filed an appeal from the agency's June 2,
2006 final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a record analysis clerk in Process Module 16, Process Division
4, Southeastern Program Service Center at the agency's facility in
Birmingham, Alabama.
In its final decision, the agency defined complainant's June 17,
2005 complaint as alleging that she was discriminated against on the
bases of sex (female), disability (hypertension and diabetes), and in
reprisal for prior protected EEO activity when complainant's employment
was terminated effective April 1, 2005. Further, the agency noted that
complainant alleged that her removal constituted a breach of a settlement
agreement she and the agency entered into resolving a 2002 EEO complaint.
With regard to her claim of disability discrimination, the agency found
complainant was not an individual with a disability, was not regarded as
an individual with a disability, and did not show that she is "associated
with" an individual with a disability. To the extent complainant was
entitled to a reasonable accommodation, the agency stated it fulfilled
its requirements, by advancing complainant sick and annual leave and by
allowing her to take 900 hours of LWOP in calendar year 2004. Further,
the agency stated in accordance with complainant's request, she was
allowed to see the nurse as needed and was permitted to take breaks
outside the usual break period. The agency stated that, as a courtesy,
it approved complainant's leave requests in accordance with documentation
she provided noting that she might be absent "infrequently" for her own
condition or her son's condition. However, the agency stated complainant
took advantage of this courtesy and averred that her frequent absences
became a hardship for the agency.
With regard to complainant's claim of disparate treatment based on sex and
in reprisal for prior protected activity, the agency stated complainant
was removed for excessive absenteeism. The agency noted in August 2004,
complainant was cautioned about her excessive use of Leave Without Pay
(LWOP) in the amount of 417.5 hours of LWOP since January 2004, after
exhausting all sick and annual leave and advanced sick and annual leave.
The agency stated that on October 8, 2004, complainant was issued a
written warning, indicating that in the six weeks since August 2004,
complainant used another 142.5 hours of LWOP. Complainant was warned that
should her excessive absenteeism not improve, she might be subjected to
leave restrictions or discharge. The agency stated from October 8, 2004,
through January 8, 2005, complainant took another 356.62 hours of LWOP,
in addition to accumulated or advanced sick and annual leave, which left
her with a negative balance of 66 hours of annual leave and a negative
balance of 240 hours of sick leave. The agency stated that complainant
came to work for a few hours either before a holiday or every third
consecutive day of work; causing the agency to conclude complainant
was abusing leave since she was able to make it into work in order
to avoid loss of holiday pay or to avoid certification of an illness.
The agency found complainant failed to show that its asserted reason
for its actions was a pretext for discrimination.
With regard to her claim of breach of settlement agreement, the agency
noted that the settlement agreement at issue required the agency to
recharacterize prior leave balances, limited the frequency with which
management could request medical documentation to substantiate absences
(only following an absence of three consecutive workdays), required
complainant be reassigned to the records analysis clerk position, and
required an interactive interview between complainant and her supervisor
to determine what other accommodations may be needed to enable her
to perform the essential functions of her position. The agency noted
that all of the provisions in the settlement agreement were completed.
The agency contended that as a result of the meeting between complainant
and management, complainant requested to visit the nurse as needed and
to take breaks outside her regularly scheduled break times. The agency
stated that these requests were granted and carried out by the agency.
Thus, the agency found complainant failed to demonstrate that the
agreement was breached.
ANALYSIS AND FINDINGS
On appeal, complainant does not challenge the agency's definition of
her complaint. We note that complainant's complaint was processed as
a mixed case complaint in accordance with 29 C.F.R. � 1614.302, which
provides that at the time the agency issues a final decision, it must
advise complainant of the right to appeal to the Merit Systems Protection
Board (MSPB), not EEOC. Although the agency properly notified complainant
of her right to appeal to the MSPB when it issued its final decision,
complainant improperly filed an appeal with the Commission. Complainant
has raised no arguments on appeal why this appeal should be considered
by the Commission. Thus, complainant's appeal concerning her termination
is DISMISSED.
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).
The record reveals complainant and the agency entered into a settlement
agreement dated March 27, 2003. The settlement agreement provided,
in pertinent part, that:
(a) The Employer agrees to grant the Employee a lateral transfer to
the first available position at her same grade and step, in a work area
not under the management of her current branch chief, with no loss of
seniority or other benefits to which she is otherwise qualified.
(b) The Employer agrees to expunge the Employee's administrative time and
leave record of any entries indicating [Absence Without Leave] 'AWOL,'
and to change any such entries to indicate 'LWOP' as the reason for the
absence.
(c) It is agreed by the parties that, with respect to any absences
of three (3) or more consecutive days, the Employee shall provide
documentation from a medical professional covering the days of such
absence, to be provided to the Employer within two (2) working days of
the Employee's return to work. It is understood by the parties that
this provision applies to absences due to the medical or dental treatment
of the Employee, as well as for those caused by such treatments for the
Employee's minor dependent.
(d) It is agreed by the parties that, within ten (10) working days of
Employee's transfer, Employee will meet with the supervisor and/or manager
of the new work area to engage in the interactive process in order to
best fashion and implement reasonable accommodations for the Employee.
In the present case, the agency contends it reassigned complainant to
the records analysis clerk position in accordance with the March 27,
2003 agreement. In her affidavit, complainant states she had been in the
records analysis clerk position since April 2003. The agency contends
that it has expunged AWOL entries and changed them to LWOP in accordance
with provision (b). Further, the agency states that it complied with
provision (c), in requiring complainant to bring in medical documentation
to cover absences where complainant has been absent for three consecutive
days or more. Finally, the agency notes that an interactive interview
was held on May 7, 2003, with complainant to determine what accommodations
would be necessary for complainant to perform the essential functions of
her records analysis clerk position. The record contains a memorandum
entitled "Record of Interview" documenting an interactive meeting
was held on May 7, 2003, between complainant and the Module Manager,
Module 16, during which complainant requested to be permitted to be
able to visit the nurse as needed and requested to take breaks outside
regularly-scheduled break times. The agency agreed to both requests.
Upon review, we find complainant failed to show that the agency breached
any of the provisions of the March 27, 2003 settlement agreement.
Accordingly, the agency's final decision finding no breach of settlement
agreement is AFFIRMED.
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
March 18, 2009
__________________
Date
2
0120064324
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120064324