Roseanne Miramonti, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionAug 25, 2009
0120073911 (E.E.O.C. Aug. 25, 2009)

0120073911

08-25-2009

Roseanne Miramonti, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.


Roseanne Miramonti,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 0120073911

Agency No. 1J-631-0026-07

Complainant filed an appeal with this Commission regarding her allegation

that the agency had breached the terms of the May 22, 2007 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 record reflects that complainant initiated EEO contact on or around

March 19, 2007, alleging that she was denied a reasonable accommodation

when management did not allow her to work a day shift in accordance

with her medical restrictions. The parties subsequently entered into

a settlement agreement providing, in pertinent part, that:

(1) [Subject] to agreement of Sr. MDO on Tour II, [sic], complainant

will be assigned temporarily, effective [Saturday] 5/26/07, to work

between the hours of 8:30 a.m. and 5:00 p.m.

(2) This temporary assignment will be reviewed each 30 days.

Complainant shall provide doctor's statement each 30 days for review by

appropriate [management] officials.

(3) Upon determination that complainant is fit for return to full

duty, she shall return to her regular assignment on Tour III.

On or around August 15, 2007, complainant submitted correspondence to the

agency alleging that the agency was in breach of the settlement agreement

because management officials sent her home on one occasion and repeatedly

refused to allow her to work half of her shift on Tour II in accordance

with the agreement. Complainant requested that the agency specifically

implement the terms of the agreement and provide her with lost wages,

benefits, and compensatory damages.

On October 16, 2007, the agency issued a final decision finding that no

breach occurred because the agency had complied with the terms of the

settlement agreement. The agency's decision noted that complainant was

not allowed to work for a period in mid-June because she had not submitted

appropriate medical documentation, and she was otherwise provided with

work between 8:30 a.m. and 5:00 p.m.

On appeal, through her representative, complainant states that management

allowed her to work 8:30 a.m. to 5:00 p.m. from May 26, 2007 through June

14, 2007, but she was placed off the clock on June 14, 2007 for failing

to submit sufficient medical documentation. When her return to work was

approved on or around June 22, 2007, she was only assigned to work from

1:00 p.m. to 5:00 p.m. She argues that she "more than met her obligations

under the Agreement" by submitting medical documentation on May 22, 2007,

June 15, 2007, August 13, 2007, August 29, 2007, and August 30, 2007.

She further argues that the agency breached the agreement by refusing to

allow her to work on June 14, 2007 and denying her an eight hour shift.

In terms of remedies, complainant seeks reinstatement to an eight hour,

daytime shift, compensatory damages, attorney's fees, and whatever other

damages the Commission deems appropriate.1

In response, the agency argues that complainant's appeal should be

dismissed as premature because it was filed prior to issuance of the

agency's final decision. The agency alternatively argues that the

settlement agreement was never breached because complainant provided

insufficient medical documentation on June 14, 2007, and, after she

submitted proper medical documentation, she was provided with work between

8:30 a.m. to 5:00 p.m. in accordance with the terms of the agreement.

As an initial matter, we must first address whether complainant's appeal

is properly before the Commission. EEOC Regulation 29 C.F.R � 1614.504(a)

provides that if complainant believes that the agency has failed to

comply with the terms of the settlement agreement, then the complainant

"shall notify the EEO Director, in writing, of the alleged noncompliance

within 30 days of when the complainant knew or should have known of

the alleged noncompliance." EEOC Regulation 29 C.F.R � 1614.504(b)

further provides that the agency "shall resolve the matter and respond

to the complainant, in writing." If the agency has not responded to

the complainant or if she is not satisfied with the agency's attempt to

resolve the matter, she may appeal to the Commission for a determination

as to whether the agency has complied with the terms of the settlement

agreement or final decision. Id.

The record reflects that complainant's September 7, 2007 appeal

was premature at the time of filing since the agency had not yet

issued a final decision addressing her breach allegation. However,

since complainant notified the agency's EEO Director of the alleged

noncompliance in a timely manner, and the agency issued a final decision

while complainant's appeal was pending before the Commission, we find

that the appeal is currently ripe for review

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, complainant argues that the agency breached provision

(2) of the agreement on June 14, 2007 by not allowing her to work that

day despite the fact that she had submitted medical documentation on May

22, 2007. She argues that the agreement required her to submit updated

medical documentation every 30 days, and, as a result, she should not have

been required to submit new documentation on June 14, 2007. She further

argues that the parties drafted provision (1) of the agreement with the

intention of granting her eight hours of work each day between 8:30

a.m. to 5:00 p.m. She states that management officials breached the

agreement by completely denying her work from June 14, 2007 through June

21, 2007 and only assigning her two to four hours of work each day after

June 22, 2007. In contrast, the agency argues that management officials

determined that complainant's light duty statement only covered her from

May 9, 2007 through June 9, 2007, and she had not submitted sufficient

medical documentation on June 14, 2007. The agency's decision notes

that she was allowed to return to work after she provided additional

medical documentation as required by provision (2). With respect to

complainant's work hours, the agency argues that provision (1) only

required the agency to provide her with work between the hours of 8:30

a.m. and 5:00 p.m., and if she wanted to be guaranteed eight hours of

work she should have explicitly included this in the agreement.

In reviewing the settlement agreement, the Commission finds that its

terms are too vague and general to be interpreted with any authority.

We find that the terms of provisions (1) and (2) are ambiguous and,

based on the parties divergent interpretations of those terms, do not

represent a meeting of the minds. Specifically, the parties are unable

to specify when the 30 day time frame for complainant to submit medical

documentation began, what constituted sufficient medical documentation to

comply with the agreement, and whether complainant was guaranteed eight

hours of work between 8:30 a.m. and 5:00 p.m each day. Consequently,

we conclude that, the settlement agreement entered into on May 22,

2007, does not represent a meeting of the minds of the parties and is

void for vagueness. See Mullen v. Department of the Navy, EEOC Request

No. 05890349 (May 18, 1989).

Accordingly, the agency's decision finding that the agency was in

compliance with the terms of the settlement agreement is VACATED, and

the matter is REMANDED to the agency for reinstatement from the point

where processing ceased in accordance with the ORDER below.

ORDER

To the extent that it has not already done so, the agency is ordered to:

(1) Within thirty (30) calendar days of the date this decision becomes

final, the agency shall resume processing the matter from the point where

processing ceased. The agency shall acknowledge to complainant that it

has reinstated and resumed the processing the previously settled matter.

(2) A copy of the agency's letter of acknowledgment 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

__________08/25/09________

Date

1 We note that compensatory damages are not an available remedy for

breach of a settlement agreement. Kessler v. United States Postal

Service, EEOC Request No. 05970446 (February 26, 1999); see also 29

C.F.R. � 1614.504(c) ("If the Commission determines that the agency is

not in compliance and the noncompliance is not attributable to acts or

conduct of the complainant, it may order such compliance or it may order

that the complaint be reinstated for further processing from the point

processing ceased.").

??

??

??

??

2

0120073911

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120073911