Nancy Reider, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 5, 2009
0120091421 (E.E.O.C. Aug. 5, 2009)

0120091421

08-05-2009

Nancy Reider, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Nancy Reider,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091421

Agency No. 4F920003608

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated January 7, 2009, finding that it

was in compliance with the terms of the February 14, 2008 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) There will be no apparent retaliation; 2) All employees will be

equalized regarding work available/overtime per the national agreement;

3) Medical documentation issue will be settled through the grievance

procedure #PS1407 to reflect that complainant is not and was not on

restricted sick leave; 4) Management will inform a specific co-worker

on 2/15/2008 that she is not to create a hostile working environment,

which will not be tolerated; and 5) All parties present will work together

to improve communication in an effort to resolve any future differences

when possible.

By letters to the agency dated March 10, and 20, 2008, complainant

alleged that the agency was in breach of the settlement agreement, and

requested that the agency specifically implement its terms. Specifically,

complainant alleged that on 2/20/2008, management allowed a specific

co-worker (noted above) to harass her; on 3/05/2008 a manager improperly

called her at home while she was on excused sick leave to inquire when

she would be returning to work so he could make the schedule; and on

3/20/2008 she was denied overtime. In addition, complainant stated

that these three issues not only breach the above agreement, but they

also infringe upon and breach prior settlement agreements, EEO Numbers:

4F-920-0054-05 and 4F-920-0174-04, involving her and the agency.

In its January 7, 2009 FAD, the agency concluded that the Postmaster

had found that complainant worked 2 hours of overtime on 3/20/2008,

and a review of clock rings reflect she worked 2.00 hours of overtime

(code 053) and 0.02 of penalty overtime (code 043). The Supervisor

of Customer Service did not dispute that he called complainant at home

for scheduling purposes, which is not contrary to any of her settlement

agreements. The Postmaster stated that management does not allow the

affected co-worker to harass complainant and has addressed issues when

brought to its attention. Specifically, in regard to the incident on

2/20/2008, the Postmaster stated that the former Supervisor of Customer

Service did speak to both the identified co-worker and complainant and

considered the matter resolved. The agency further concluded that it

has not breached any of the conditions contained in this, or any other

settlement agreement involving complainant.

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 burden is on the party alleging breach to

establish that a breach has occurred. Based on the evidence in the

record, the Commission finds that complainant has not shown that the

agency has breached the settlement agreement at issue.1 Recognizing that

complainant details her own account in several letters to the agency,

the Commission is not swayed in finding that the agency has breached the

settlement agreement at issue in this matter. Accordingly, the agency's

final decision finding no settlement 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

August 5, 2009

__________________

Date

1 In its final decision, the agency also sufficiently counters

complainant's additional claims of breach/infringement involving the

previous settlement agreements listed under EEO Numbers: 4F-920-0054-05

and 4F-920-0174-04.

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0120091421

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091421