01a43272_r
11-29-2004
Renee Sands, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Renee Sands v. United States Postal Service
01A43272
November 29, 2004
.
Renee Sands,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43272
Agency No. 1C-284-0003-04
DECISION
Complainant filed an appeal with this Commission from a final decision by
the agency dated March 9, 2004, finding that it was in compliance with
the terms of a December 3, 2003 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The December 3, 2003 settlement agreement provided that:
(1) A roster of the next day's assignment will be posted on a daily or
weekly basis.
(2) A lunch and break schedule will be set up for all employees.
Plan 5 briefings will be reinstituted to improve employee-management
communications.
(4) All employees will be treated equitably[,] with integrity and respect
by management personnel.
Ethics training will be provided for management personnel as soon as
possible[,] but not later than 120 days from the date of this agreement.
By an undated letter to the agency received on January 9, 2004,
complainant claimed that the agency breached the settlement agreement.
Regarding provision (1), complainant claimed that her supervisor failed
to create a roster of the next day's assignment and post it on a daily
or weekly basis. Complainant stated that she was still being assigned a
different machine each night when junior and non-postal career employees
have permanent partners on a permanent basis.
Regarding provision (2), complainant asserted that her supervisor failed
to set up a lunch schedule for all employees, and instead set up a lunch
schedule only for her on December 22, 2003, by giving her �a directive�
to take lunch at 1:30 a.m �no matter what.�
Regarding provision (4), complainant claimed that on December 19, 2003
her supervisor �violated her rights� by asking her to relieve 2 junior
employees for lunch,� and stated that singling her out from 51 employees
to monitor her every move was not equal, dignified or respectful.
Complainant also noted that other employees were given the option �in
the first Plan 5 briefing� referenced in provision (3), to either take
lunch at 1:30 or let the supervisor know if they did not want to go at
that time.
In its March 9, 2004 decision, the agency found no breach. The agency
first noted that provisions (1) and (2) did not have �begin� dates
because management could not ensure schedule and roster implementation,
and that complainant was told in mediation that she is as a mail
processing clerk with a principle assignment area of �automation,� and
that she does not bid on a certain machine.
Regarding provision (1), the agency found that complainant's supervisor
asked complainant who she would like to work with, and when she received
no response after two weeks, she was assigned to a partner on a particular
machine. The agency also stated that a copy of the daily roster has been
posted daily since mid-January. Regarding provision (2), the agency
stated that a manageable lunch and break schedule had been set up for
all employees provided that the operation is fully staffed; and that on
nights when there is short staff, employees take lunch based on volume
and scheduled dispatch time. The agency stated that on December 22,
2003, complainant did not agree with lunch based on operational needs,
so she was given a permanent lunch schedule no matter what machine
she was working on at the time. Regarding provision (4), the agency
determined that it had the right to move employees to accomplish the
mission of the agency, and that no seniority rights apply.
On appeal, complainant contends that no work schedules have been
implemented on a regular basis, except when it �suited their needs,�
and that �a daily roster has not been posted on a regular basis since
mid-January.�
The record contains a sample employee schedule or roster from February
5, 2004, and a statement from the Manager of complainant's facility
stating that although the sample version was created on February 5,
2004,�the actual assignments were made in Mid January.� Concerning
provision 2, the record contains a March 2, 2004 statement from the
same Manager indicating that, even though he was �down 17 employees� he
had �the preliminary [lunch break] schedule finished.� In a March 30,
2004, statement, the manager also asserted that on the day of asserted
breach �[t]he employees were given the option to take their lunch at 0130
. . . or later if they felt the 0130 lunch break would interfere with
their [work].� The Manager further revealed that [w]e don't schedule
lunch relief by seniority, we schedule by which machine needs to go to
lunch regardless of who is operating the machine.�
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).
The Commission determines that complainant did not show that the agency
breached the December 3, 2003 settlement agreement. Regarding provision
(1), which required a posting of �a roster of the next day's assignment,�
the record reflects that the agency began posting a roster or schedule
of employee assignments in mid-January 2004, and that the practice
has continued since that time. Although complainant denies the agency
claim that a daily roster has been posted on a regular basis on appeal,
she has failed to provide any evidence to substantiate her contentions.
We note that complainant has also failed to show the relevance of her
assertion (that she was assigned to a different machine each night),
to the requirement that the agency post a daily roster.
Regarding provision (2), that a �lunch and break schedule� be set for
all employees, we find that the agency had a lunch and break schedule
in place at the time of the alleged breach, that met the requirements
of the agreement. The record indicates that employees could take their
lunch at 0130, or choose a later time if their work made it necessary,
and that lunch relief was scheduled by the relative needs of each machine
operated. Complainant in essence asserts that a permanent set time for a
lunch break was necessary for all employees under the agreement; however,
nothing in the settlement agreement sets such limits on the flexibility
of the �schedule.� Moreover, the record also indicates that the agency
has subsequently set up a more predictable schedule for times when the
facility is fully staffed, while maintaining a flexible arrangement for
instances when it is not. We therefore find that complainant has failed
to show an agency breach of provision (2).
Finally, we find that provision (4), which requires agency management to
treat employees �equitably� and with �integrity and respect,� is too vague
to allow a determination as to whether the agency has actually complied
with its requisite terms. See Bruns v. United States Postal Service,
EEOC Appeal No. 01965395 (June 24, 1997). Furthermore, a promise by
an agency to treat a complainant equitably and respectfully does not
constitute consideration for withdrawal of a complaint, as it only
agrees to provide something to which complainant was already entitled.
See Cockrell v. United States Postal Service, EEOC Appeal No. 01956101
(1996). We find that this provision of the settlement agreement is void
and unenforceable. Given that other consideration was exchanged through
other provisions of the agreement, we determine that the entire settlement
agreement is not invalid, but rather reformed without provision (4).
The agency's finding of no breach of the December 3, 2003 settlement
agreement 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 29, 2004
__________________
Date