0120092400
06-29-2010
Sarah L. Schott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Sarah L. Schott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120092400
Agency No. 4E-800-0224-07
DECISION
Complainant filed a timely appeal with this Commission from a final
decision determination by the Agency dated April 1, 2009, finding that
it was in compliance with the terms of the August 16, 2007 settlement
agreement into which the parties entered. For the following reasons
the Agency's final determination is AFFIRMED.
BACKGROUND
The settlement agreement provided, in pertinent part, that:
(1) Should [Complainant] experience concerns and/or problems within the
workplace that affect her, she will speak with [the Station Manager]
and [Supervisor 1] directly.
(2) Should [Supervisor 1] experience a request for auxiliary assistance
and the need to assign a task to another co-worker who then expresses
open dissatisfaction with [Complainant], he will address the co-worker's
expressed dissent and/or dissatisfaction with [Complainant], he will
speak with [the] person immediately.
(3) When [Complainant] requests assistance from management, she would like
to have factual data so both management and [Complainant] could problem
solve together. [The Station Manager] and [Supervisor 1] both agree.
(4) [Complainant's representative] requests and [Complainant], [the
Station Manager], and [Supervisor 1] agree to involve him in any concerns
R/T auxiliary assistance
(5) [Complainant] withdraws her complaint on the issue.
By letter to the Agency dated January 25, 2009, Complainant alleged that
the Agency was in breach of the settlement agreement. Specifically,
Complainant alleged that on October 3, 2008, provision 1 was breached when
the Station Manager and Supervisor 1 tried to force an unsafe practice
on her regarding the loading of mail gurneys. Complainant stated that
speaking to the Station Manager and Supervisor 1 did not do any good.
Additionally, Complainant stated that provision 3 was breached since no
data or communication of any problems was given to her. Complainant
stated on October 4, 2008, "in an effort to inform and communicate
[her] commitment to following Postal rules" the Station Manager was
given documentation covering her Special Inspection, her 60 day review,
and Inspectors' day showing clocking to street to load parcels.
Moreover, Complainant stated that since November 17, 2008, she has
documented over 18 instances of the Station Manager or Supervisor 1
following and watching her as she does carrier work. Complainant also
stated that the Station Manager and Supervisor 1 have made insulting and
degrading comments. For example, Complainant states that on October
3, 2008, both the Station Manager and Supervisor 1 made statement
regarding Complainant being one of the first carriers on the street.
Also, Complainant states that on December 23, 2008, she asked Supervisor
1 for a form 3996 for overtime and he commented that no one else turned
in one except Complainant. Finally, Complainant complains about remarks
made by Supervisor 1 on January 13, 2009, following a snow storm, when
she requested auxiliary assistance.
In its April 1, 2009 final determination, the Agency concluded that it
did not breach the terms of the settlement agreement. With regard to
provision 1, the Agency stated that Complainant was instructed to take
all her mail to the street at one time and refused. The Agency stated
it was management's responsibility to give instructions to its employees
and it is the employees' responsibility to follow those instructions.
With regard to the alleged comment about Complainant being difficult,
the Station Manager stated this comment was made after Complainant
refused to follow management's instructions.
With regard to provision 1, the Agency noted that on October 4,
2008, Complainant approached the Station Manager about the incident
on October 3, 2008, and the Station Manager explained management has
the responsibility to give employees instructions on how to carry the
route in the safest and most efficient way. The Station Manager stated
Complainant repeatedly made two trips to load her car and noted this was
something Complainant had been instructed to eliminate. Management also
stated its instructions to Complainant did not violate safety measures.
The Agency also stated management is not following Complainant as alleged.
With regard to the comments made in connection with Complainant's request
for Form 3996, the Agency stated that these questions would be asked
of any employee. The Agency stated Complainant has an eight-hour work
restriction and has always been instructed to keep her mail volume to
eight hours or less.
Additionally, the Agency noted Complainant requested counseling on these
same issues raised in her breach claim. The Agency stated that these
same issues were being addressed in Agency Case No. 4E-800-0063-09.
On appeal, Complainant states that the reason behind taking two trips
to load mail is to ensure she is working rather than standing around
waiting for clerks to finish throwing mail. Additionally, Complainant
states that employees have a right to a safe and healthy work environment.
Complainant claims that eight other routes in the station have the same
or lower volume mail than her route, which she claims is a breach of the
settlement agreement. Complainant states if the Agency is concerned about
her work restrictions, they should not enforce an unsafe gurney practice.
Complainant also requests the Agency assign routes without regard to age,
sex, and physical injuries.
In her brief in support of her appeal, Complainant states that the
settlement agreement requires requests for assistance from management
be handled using factual data and she claims the Agency has failed to
follow this term. Complainant also disputes that it is the Agency's
responsibility to give employees instructions and the employees'
responsibility to follow those instructions. Rather, Complainant
argues each employee is responsible for being aware of their own
responsibilities and limitations and to adjust her own work method to
enable safe accomplishment of duties.
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 present case, we find Complainant failed to show that the
Agency breached the terms of the August 16, 2007 settlement agreement.
Complainant claims the Agency is enforcing an unsafe gurney practice
and claims this violates provision 1 of the agreement. According to
provision 1, if Complainant experiences concerns and/or problems within
the workplace that affect her, she will speak with the Station Manager
and Supervisor 1 directly. There is no evidence that Complainant has
been denied the opportunity to speak directly with the Station Manager
and Supervisor 1 regarding workplace concerns. In fact, Complainant
states that speaking with the Station Manager and Supervisor 1 did not
do any good. We find provision 1 only required Complainant be allowed
to speak directly with the Station Manager and Supervisor 1. We note
Complainant's concerns regarding the gurney practice are outside the
scope of the agreement.
Provision 3 stated that when Complainant requests assistance from
management, she would like to have factual data so both management and
Complainant could problem solve together. According to this provision
both the Station Manager and Supervisor 1 agreed to this. Upon review
of the record, we find Complainant has not shown a specific instance
when this provision was breached.
With regard to Complainant's contentions surrounding mail volume,
her claim that management follows her, Complainant's challenge to the
practice of throwing mail, and her statement that she has been subjected
to insulting and degrading comments by management, we find these
allegations were properly treated as new allegations of discrimination
by the Agency. The Agency identified the new complaint number as Agency
Case No. 4E-800-0063-09.
CONCLUSION
Accordingly, the Agency's final determination finding no breach of the
settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
June 29, 2010
__________________
Date
2
0120092306
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120092400