0120090668
05-12-2009
Lina Hankerson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lina Hankerson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090668
Agency No. 4H330025205
DECISION
On April 4, 2008, complainant was notified that because of a permanent
medical condition that had met maximum medical improvement, she would
be removed from her Carrier route 1124 and would become an unassigned
regular with a new start time but with the same day off as before.
Shortly thereafter, complainant timely contacted an EEO Counselor alleging
discrimination based on race, sex, and disability when:
(1) complainant was given a new start time when her route was taken from
her; and
(2) On April 18, and April 22, 2008, complainant was denied a schedule
change.
Complainant also alleged that the agency had violated a 2005 settlement
agreement (Agreement 1) entered into by the parties. Agreement 1
provided, in pertinent part, that:
(1) [Management] agrees to leave [complainant] on her bid assignment
Route 1124 at the North Andrews Annex Station for the duration of her
being on that bid. This does not negate Management's right to adjust
starting times.
(2) [Management] agrees to review documentation of all payments by
[complainant] of late pick-up charges by the aftercare center occasioned
by her having to work the later times to see if there is the possibility
of reimbursing her.
On May 21, 2008, the partiers entered into a second settlement agreement
(Agreement 2) in which management agreed to abide by legal requirements
and prior agreements with the Union in exchange for complainant dropping
her complaint and treating the matters raised therein as an allegation of
breach of Agreement 1. Pursuant to this last term, complainant on May
28, 2008, wrote a letter specifically stating that she wished to have
her claims treated as alleging a breach of settlement. In the letter,
complainant further specifically alleged the following: that she had been
denied a new written job offer in accordance with the Department of Labor
regulations; her schedule was changed in violation of Section 546 of the
Employee/Labor Manual; based on this change of starting time, she was
denied overtime opportunities; and that these duties were being offered
to non-overtime desired list employees, part-time flexible employees, and
transitional employees who, unlike complainant, do not have disabilities.
On October 28, 2008 the agency issued a final decision (FAD) finding
that it was in compliance with the terms of Agreement 1, and complainant
timely appealed. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405. Specifically, the agency found that none of
the issues raised by complainant violated the terms of the agreement.
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 initially that complainant has
not shown that the agency breached the agreement. Complainant has not
shown, nor does she allege, that she was removed from her assignment
Route 1124 prior to the expiration of her bid. Nor has she shown, or
alleged, that management did not review documentation provided by her
concerning late pick up charges of her aftercare center. However the
Commission further finds that complainant's allegations should not
have been treated as a breach allegation and instead should have been
treated as a new complaint of discrimination. While we recognize that
in her May 28 2008 correspondence, complainant specifically requested
that the issues be treated as breach allegations, the allegations
nevertheless clearly constitute new claims that are unrelated to the
specific terms in the agreement. By insisting on framing her request
as a breach allegation, agency EEO officials should have known that
complainant's claim would fail. Complainant's request to have these
allegations treated as breach allegations should have been ignored in
order to provide her with an opportunity to air her claims as claims of
employment discrimination. We therefore VACATE the FAD and REMAND this
case to the agency for processing in accordance with the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (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 (R0408)
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 (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
May 12, 2009
__________________
Date
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0120090668
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090668