0120091905
07-15-2009
Elizabeth P. Foster, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Elizabeth P. Foster,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120091905
Agency No. 7K0J08006
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated February 18, 2009, finding that it was in compliance
with the terms of the July 14, 2008 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402, 1614.405 & 1614.504(b).
The settlement agreement provided, in pertinent part, that:
[Complainant] will be converted to a regular employee retroactive to
16 May 08. This guarantees her between 20-40 hours of work a week and
provides benefits if she elects to receive them. The AF Form 2548,
Non-Appropriated Fund Request for Personnel Action, will be completed
within five working days from the date of the last signature on [the
negotiated settlement agreement].
The Agency will provide an equitable, fair, and professional
distribution of work hours in scheduling bartenders for
parties/special occasions. Factors such as performance,
availability, seniority and willingness to work a variety
of special functions will all be considered in helping club
management determine work schedules for special functions.
The current club manager will review the work schedules of
bartenders on a monthly basis to ensure fairness.
By letter to the agency dated January 12, 2009, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to schedule bartenders in a
fair and equitable manner. Complainant stated that management scheduled
her for the minimum number of hours possible for regular status - 20,
and that others who have less seniority and are not categorized as
"bartenders" were given more hours than she or given the hours she
normally worked.
In its February 18, 2009 final decision, the agency concluded that it
did not breach the July 14 settlement agreement. The agency stated
that complainant acknowledged that she worked an average of 28 hours per
week between July 13, 2008 and January 1, 2009 and such is more than the
average worked by any other employee. The agency added that complainant
was scheduled to work several parties and special occasions, and that
the club manager reviewed the schedule for fairness on a weekly basis.
The instant appeal from complainant followed. On appeal, complainant
reiterated previous contentions and added that the agency failed to
address her January 12 breach allegations. Also, complainant provided a
list of the total number of hours she and other employees worked between
July 13, 2008 and January 3, 2009, as well as a list of eleven parties
that she worked between August 1 and December 21, 2008.
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 complainant failed to meet her
burden of proving breach. See Vega v. U.S. Postal Service, EEOC Appeal
No. 01986613 (June 30, 2000). After careful review of the record and
consideration of "the plain meaning rule," we are not persuaded that
the agency breached the settlement agreement as complainant alleged.
Complainant did not voice particular concern with the first paragraph,
although that is the provision regarding weekly work hours. In fact,
the first paragraph provides that the agency change complainant to a
regular employee and hence guarantee her between 20-40 hours of work
a week, and complainant acknowledged that she is scheduled for at
least 20 hours per week. The second paragraph addresses "equitable,
fair, and professional" scheduling for "parties/special occasions" and
complainant stated that she worked eleven parties during a five month
period following the execution of the July 14 agreement. Such a standard
is difficult to gage and we find that complainant did not establish that
eleven parties in five months is not "equitable, fair, and professional."
Based on the above, we AFFIRM the agency's finding 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
July 15, 2009
__________________
Date
2
0120091905
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091905