01A11058_r
08-30-2001
Faye A. Hines, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Faye A. Hines v. United States Postal Service
01A11058
August 30, 2001
.
Faye A. Hines,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11058
Agency Nos. 1-H-335-0043-99, 1-H-336-0055-99, 1-H-336-0047-99
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated October 25, 2000, finding that it was in
compliance with the terms of the March 31, 1999 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) [Complainant's] sick leave will be approved in accordance with normal
[agency] procedures, that is,
in accordance with grievance #12699AEB13
[complainant] will provide a �3971" with a doctor's appointment card
and the sick leave will be �scheduled sick leave�
(2) The agency agreed that there will be no retaliation/reprisal in
regard to the EEO activity cited against her or her representative.
The record contains a copy of the resolution reached in grievance
#12699AEB13, which states:
The grievant will not be required to provide any additional documentation
after the initial documentation has been provided for scheduled sick
leave for absences of 3 days or less.
Complainant sent a letter to the agency alleging that it was in breach
of the settlement agreement. Specifically, complainant alleged that on
September 19, 2000, she submitted a 3971 with a doctor's appointment card
attached to her supervisor (S1) to be approved for scheduled sick leave.
Complainant stated that S1 told her that he would approve the leave
but would not schedule it pending additional documentation from her
doctor. Complainant alleged that a similar incident occurred on September
25, 2000.
In its October 25, 2000 decision, the agency stated it has been abiding
by the terms of the agreement. The agency stated that when complainant
makes a request for an appointment, she always asks for more than two to
three hours of leave. The agency stated that if so much time is needed
for a pre-scheduled appointment then the doctor should have no problem
with giving complainant a note stating that she is incapacitated for the
remainder of the day. In addition, the agency noted that complainant
does not schedule her appointments for her off time. The agency cited
the September 19, 2000 incident in which complainant requested five
and one-half hours of leave with no explanation of the length of time
and stated that whenever this much time is requested for a scheduled
doctor's appointment, it becomes necessary for the agency to ask that
documentation be provided.
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 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 present case, we find that the agency is not in compliance with the
terms of the March 31, 1999 settlement agreement. The agreement provided
that when complainant provides a 3971 with a doctor's appointment card,
the sick leave will be �scheduled sick leave.� The agreement, per
the grievance resolution, further provided that complainant will not
be required to provide any additional documentation after the initial
documentation has been provided for scheduled sick leave for absences
of three days or less. The record shows and the agency admits that it
requested additional documentation prior to approving scheduled sick
leave for two absences of less than a day when complainant already had
provided a 3971 with a doctor's appointment card. Despite the agency's
explanation why it requested additional documentation, we find that the
agency breached the terms of the agreement. Therefore, we shall order
the agency to comply with the settlement agreement.
Accordingly, the agency's decision that it did not breach the agreement
was improper and is REVERSED and the matter is REMANDED for further
processing in accordance with the Order below.
ORDER
The agency shall comply with the agreement by not requiring complainant to
provide any additional documentation after the initial documentation has
been provided for scheduled sick leave for absences of 3 days or less.
Sufficient documentation for sick leave shall be, as per the agreement,
a 3971 with a doctor's appointment card. The agency shall, within 30 days
of the date this decision becomes final, send a letter to complainant
informing complainant that the agency will comply with the sick leave
provisions of the settlement agreement. A copy of the agency's letter
to complainant must be sent to the Compliance Officer referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 30, 2001
__________________
Date