Sandrana Wilson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 26, 2009
0120090024 (E.E.O.C. Feb. 26, 2009)

0120090024

02-26-2009

Sandrana Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sandrana Wilson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090024

Agency No. 4F-900-0278-07

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated September 18, 2008, finding that it

was in compliance with the terms of the November 29, 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.

Complainant was an acting customer service supervisor working under the

acting manager for the Pico Heights station. Complainant filed an intake

form dated September 10, 2007, alleging, in part, discrimination based

on unidentified base(s) when she was not paid overtime despite closing

the station between 8 PM and 9 PM, closing it within the last two months

between 7 PM and 7:45 PM, and on a few occasions closing it at 6:30 PM.

She wrote that she did several station audits, which had to be done before

or after business hours, incurring additional overtime. Complainant wrote

that the acting manager would not allow her to make four clock rings

(presumably reporting time, start and end of lunch, and departing time)

because this would document overtime, and the acting manager adjusted

complainant's clock rings to falsely eliminate overtime.

The September 18, 2008, settlement agreement provided, in pertinent part,

that:

...complainant will document her overtime between February and September

of 2007; management will compensate her accordingly. Management agrees

to itemize complainants' clock rings to determine her dates of employment.

Complainant will provide witness statements verifying her overtime on her

scheduled days that are documented as worked. Management will corroborate

all evidence presented by the complainant....[Overtime]...will include

night differential....

Complainant provided three brief statements dated February 27, 2008, by

three witnesses which were identically worded. The witness statements

indicated that on a nightly basis they stayed and closed the station

with complainant anywhere from 8 PM to sometimes 9 PM, and this occurred

approximately 98% of the time.

By letter to the agency dated July 11, 2008, complainant alleged that

the agency breached the settlement agreement, and requested that her

informal complaint be reinstated. She explained that she submitted

documents and statements to the agency supporting her overtime, but had

received no payment.

The acting manager responded in an e-mail that on August 7, 2008, she

reviewed complainant's clock rings from February 2007 through September

2007, and complainant did not have four basic clock rings any day she

claimed overtime. She wrote that complainant's scheduled hours were

11 AM to 8 PM, with an hour for lunch; albeit complainant reported to

duty each day at differing times. She wrote that for this reason the

witness statements were incredible. The acting manager added that there

were days complainant came to work late or left for a few hours to see a

doctor or for personal business, but was not docked any time. The acting

manager wrote that once a month complainant came in early or stayed late

to conduct a floor stock audit, and she would pay complainant overtime

for this if complainant could identify the dates. The acting manager

also wrote that she would pay complainant overtime for any "natural"

clock ring after 8 PM.

Relying on the acting manager's response, the FAD found no breach.

It added that complainant failed to report her allegation in breach

in writing within 30 days in writing as prescribed in the settlement

agreement.

On appeal, by and through a representative, complainant reiterates her

claim of breach. She writes that as a supervisor, she was not required

to punch in or out for work. She writes that the agency has not provided

any evidence that it itemized her clock rings.

EEOC Regulation 29 C.F.R. � 1614.504(a) provides that if a complainant

believes that the agency has failed to comply with the terms of a

settlement agreement, she 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. There is insufficient

information in the record to support a finding that complainant untimely

raised her allegation of breach. Per the settlement agreement,

she provided settlement agreements dated in late February 2008, and

alleged a breach for non-payment of overtime on July 11, 2008. Given the

complexity in potentially calculating overtime, it was not unreasonable

for complainant to wait some months before filing a notice of breach.

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 information complainant provided which is in the record would make

it difficult to calculate overtime. The statements indicate complainant

worked anywhere from 8 PM to 9 PM a night, but they don't indicate when

complainant started work and are generally worded, making it difficult to

calculate overtime. Moreover, on her September 10, 2007, intake form,

complainant wrote that for the last two months she closed the station

between 7 PM and 7:45 PM. Further, complainant wrote on her intake form

that she was not allowed to make four clock rings, but on appeal changes

the tone by writing she was not required to punch in and out for work.

Under the settlement agreement, however, the agency was to itemize

complainant's clock rings to determine the days she worked, and

corroborate all evidence of overtime complainant submitted. There is

no evidence that the agency attempted to corroborate complainant's

overtime claim by examining clock rings to ascertain reporting and

departing times where possible, looking at other records to determine

when she performed audits, and looking for any other evidence of how

long and when she worked. This failure of an attempt to corroborate

complainant's overtime claim breached the settlement agreement.

The remedy for breach of a settlement agreement is to specifically

implement its terms or reinstate the complaint for further processing

from the point processing ceased. Based on our review of the record,

implementing the settlement agreement is impracticable because there is

insufficient information in the record to do so, and after all this time

the parties have not arrived at an agreeable way to do so. Accordingly,

we order below that complainant's informal complaint be reinstated from

the point processing ceased.

ORDER

The agency is ordered to process remanded informal complaint

4F-900-0278-07 from the point processing ceased in accordance with 29

C.F.R. � 1614.105 et seq. The agency shall acknowledge to the complainant

that it has received the remanded informal complaint within thirty (30)

calendar days of the date this decision becomes final.

A copy of the agency's letter of acknowledgment to complainant 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 (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

__________________

Date

February 26, 2009

2

0120090024

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120090024