01A34188_r
11-18-2003
Lorie N. Nikitin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lorie N. Nikitin v. United States Postal Service
01A34188
November 18, 2003
.
Lorie N. Nikitin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34188
Agency No. 4F-950-0038-02
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated June 3, 2003, finding that it was in
compliance with the terms of a January 17, 2002 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The January 17, 2002 settlement agreement provided, in pertinent part,
that<1>:
[Complainant] will get a special route inspection on a day of her choosing
when she is back on full duty.
By letter to the agency dated February 21, 2003, complainant alleged that
the agency breached the settlement agreement. Specifically, complainant
alleged that the agency failed to commence a special route inspection on
January 25, 2003 (the date on which the inspection was to begin, pursuant
to complainant's request)<2>. Moreover, by letter to the agency dated
April 30, 2003, complainant stated that she settled a grievance on this
issue and that the terms of the grievance settlement required agency
management to pay her $10 for each day the inspection did not occur.
Complainant also requests additional compensation because she has not
been paid on time and her route has not been adjusted properly.
In its June 3, 2003 final decision, the agency concluded that the
special route inspection did not occur the week of January 27, 2003,
because complainant's supervisor had a family emergency and was called
away from the office. In addition, the agency stated that a particular
manager was on annual leave and that complainant's supervisor was the only
one certified to conduct route inspections. The agency determined that
under such circumstances the inspection had to be postponed. Moreover,
the agency asserted that the inspection was carried out beginning on
February 3, 2003 and that the route has been adjusted.
In regard to the compensation that complainant is seeking from management,
the agency's final decision asserts that the issue of compensation
is addressed in a grievance settlement but that the January 17, 2002
settlement agreement does not provide for any monetary compensation. The
agency stated it will not further address this portion of complainant's
breach claim.
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).
On appeal, complainant asserts that her supervisor was not at work
on January 27, 2003, but that he was in for the remainder of the week.
The complainant further asserts that �management was not acting [in] good
faith to give [complainant] the special route inspection on the week of
[her] choice.� Complainant states that she was not given a dry run nor
was she given proper training procedures on how to complete the special
route forms.
In the instant case, the record contains a signed letter from
complainant's supervisor to the agency dated May 7, 2003. Therein, the
supervisor stated that the route inspection was not conducted the week of
January 27, 2003, because he had a family emergency and with the manager
on vacation, he (complainant's supervisor) was the only one certified to
conduct the route inspection. Complainant's supervisor further asserted
that he met with complainant and a shop steward on January 28, 2003,
and informed them that the inspection would be delayed by one week due
to the emergency situation. Moreover, complainant's supervisor asserts
that complainant and the shop steward agreed to the delay and that the
inspection was conducted the week of February 3, 2003.
The Commission determines that complainant failed to show breach of the
January 17, 2002 settlement agreement. The record reveals that the
special route inspection commenced on February 3, 2003. The failure
to satisfy a time frame specified in a settlement agreement does not
preclude a finding of substantial compliance of its terms; especially
when all required actions were subsequently completed. See Lazarte
v. Department of the Interior, EEOC Appeal No. 01954274 (April 25, 1996).
In the instant case, the route inspection was performed shortly after
the date requested by complainant and the agency has provided adequate
justification for this minor delay.
Complainant also argues that she was not given proper training on the
completion of the special route forms and was not given a dry run;
however, the provisions of the settlement agreement do not provide for
training on the special route forms or a dry run. In addition, while
complainant claims her route was not adjusted properly, the settlement
agreement does not provide for complainant's route to be adjusted in
a particular way; the relevant provision only provides that a special
route inspection be conducted.
In regard to complainant's assertion for monetary compensation, we
agree with the agency's determination that the requested compensation
was part of a grievance settlement and the settlement agreement at issue
does not contain any provisions regarding monetary compensation.
Accordingly, the agency's finding of no breach is AFFIRMED.
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 (S0900)
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 (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
November 18, 2003
Date
1The provisions of the instant settlement agreement are numbered herein
for ease of reference.
2On appeal, complainant asserts that she originally requested January 27,
2003, as the commencement date for the special route inspection; however,
complainant states that she and her supervisor later agreed to January
25, 2003, as the date to initiate the inspection.