0120083875
01-13-2009
Kathy J. Stallbaumer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathy J. Stallbaumer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083875
Agency No. 4E680002307
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 11, 2008, finding that it
was in compliance with the terms of the February 9, 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) The local MOU regarding the presence on the work room floor will
be enforced through the use of the upstairs room as a location for off
duty workers to wait.
(2) Both parties will attempt to be polite and direct in expressing
their concerns to each other.
(3) Efforts will be made to gather information at the beginning of
each new work day to set expectations for that day. The parties will
openly share their concerns or expectations for the coming day.
(4) The expectations for the Sabetha Post Office are that all forms
will be filled out by all employees in a similar manner, including form
3996.
(5) No later than April 10, 2007, the parties will have a conversation
to check on their views of the progress they are making and possibly
identify other communication tools to use.
By letter to the agency dated July 14, 2008, complainant alleged that the
agency was in breach of the settlement agreement, and requested that the
agency reinstate her complaint. Specifically, complainant alleged that
an identified coworker sits in the office after finishing his route and
comes in up to 30 minutes before his clock time; that she did not feel
she was being treated with dignity and respect because she was expected
to finish her route faster than ever; and when she was told not to fill
out a Form-3996.
In its August 11, 2008 FAD, the agency concluded it was not in breach
of the agreement. The agency solicited a written statement from the
Postmaster in response to complainant's breach allegations which stated
that the identified coworker was not on the work room floor when not
on duty and sometimes the Postmaster has to ask him questions. The
Postmaster stated he treats all the carriers with dignity and respect
and that complainant's route times are determined by route inspections.
With respect to the Form-3996, the Postmaster admitted he told complainant
not to fill out the form, and then realized the error. The form is now
filled out for all overtime. The agency noted that on March 27, 2008,
a manager of Postal Operations and a State Steward visited the facility
where complainant worked and spoke with employees. Old and new issues
were discussed and a follow up meeting was held.
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, the Commission finds inadequate evidence to support
complainant's claim that the agency has breached any of the terms of
the settlement agreement. Although complainant was told not to fill
out a form one time, the matter was corrected and complainant has not
explained how she was harmed by such. The agency's determination of no
breach 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
January 13, 2009
__________________
Date
2
0120083875
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120083875