0120073789_
02-19-2009
Mercedes E. Tercilla, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Mercedes E. Tercilla,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120073789
Agency No. 4H-330-0042-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 15, 2007, finding that it was
in compliance with the terms of the August 10, 2001 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:
In a good faith effort by both parties to resolve this matter
at the lowest possible level, the following will constitute
the full settlement of this EEO case and due to the fact that
the Station Manager through a grievance-Step A meeting agreed
that complainant would be granted 06:30 a.m. temporary schedule
changes (revised schedules) on a monthly basis, with complainant's
understanding that the circumstances may change (needs of service,
heavy mail volume, Christmas season, etc.), which may cause her
reporting time to change as well. No retaliation will stemmed
[sic] from filing this EEO complaint. This settlement is not
to be construed as any admission of wrongdoing by either party.
On June 6, 2007, complainant alleged that the agency breached the
settlement agreement by requiring her to report to work at 7:00 a.m.,
although she had previously been reporting to work at 6:30 a.m. since
the execution of the settlement agreement in 2001. Complainant requested
that the agency return him to a 6:30 starting time.
In its August 15, 2007 FAD, the agency concluded that it did not breach
the agreement. The FAD stated that an investigation by a Station
Manager revealed that complainant's reporting time was changed to 7:00
a.m. because the implementation of the Flat Sorting Machines led to the
starting time changing to 7:00 a.m for all routes. The FAD concluded
that because the settlement agreement "clearly states that circumstances
may change which may cause a change in reporting time," the agency did
not breach the agreement when it changed complainant's starting time.
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 are unable to ascertain whether the agency
breached the agreement because the agency failed to supplement
the record with evidence pertinent to complainant's breach claim.
For example, we note that the agency's final decision finding no breach
is based upon an investigation by an EEO Specialist, who purportedly
spoke with management about complainant's breach claim. However, the
record contains no documentary evidence from this investigation, such
as affidavits from management addressing complainant's breach claim,
and the changes that allegedly occurred which resulted in complainant's
change of her start time. Consequently, the FAD's conclusions and bare
assertions are not supported by any persuasive independent evidence.
Given this lack of evidence, we are unable to determine whether the
agency complied with the settlement agreement.
Accordingly, the Commission VACATES the agency's final decision finding
no breach of the agreement and REMANDS this matter for further processing
as directed below.
ORDER
The agency is ORDERED to take the following actions:
(1) The agency shall supplement the record with affidavits and other
documentary evidence as to whether it is in compliance with the specific
provision of the August 10, 2001 settlement agreement.
(2) Within 30 calendar days of the date this decision becomes final,
the agency shall issue a new determination as to whether the agency
breached said provisions of the settlement agreement.
A copy of the agency's new determination regarding compliance with the
settlement agreement 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
__ February 19, 2009________________
Date
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0120073789
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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