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