0120111157
10-24-2012
Sharon D. Cushon, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Sharon D. Cushon,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120111157
Agency No. 4E-640-0091-10
DECISION
Complainant filed an appeal with this Commission from a final decision by the Agency dated November 8, 2010, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. For the following reasons, the Commission VACATES the Agency's final decision.
BACKGROUND
On September 16, 2010, Complainant and the Agency entered into a settlement agreement. The settlement agreement provided, in pertinent part, that:
[Person A] will review overtime hours where non-OTDL person worked instead of [Complainant] from March 1 to August 1, 2010. Payment will be paid to [Complainant] to cover these instances when she should have received the overtime work. The parties estimate this to be about 10 hours. [Person A] will review the hours and tell [Complainant] by the end of business on September 21, 2010. [Person A] will then work with [Person B] to process the payment. [Person A] agrees to assign [Complainant] to higher level work as required with preference to her until hours equal those paid to the other late clerk and then for the two clerks higher level work will be distributed equally/equitably from that time forward. The time for retroactive hours is from June 1, 2009, to June 1, 2010.
By letter to the Agency dated October 12, 2010, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that as of October 12, 2010, the Agency had taken no action with regard to the signing of the agreement.
In its November 8, 2010 decision, the Agency concluded that it was in compliance with the term of the settlement agreement. The Agency noted that Person A, Supervisor Customer Service, stated that PS Form 8041, Agency Settlement Worksheet, was completed and submitted to Eagan Payroll Services Branch, in Eagan Minnesota. The Agency stated the Eagan Payroll Office confirmed that the completed form was received in their office on October 21, 2010, and payment was processed on November 4, 2010. The Agency noted that the Eagan Payroll Office stated that a check in the amount of $382.95 will be mailed to the Agency. The Agency also stated that Complainant received 224.79 hours less than the higher level hours received by the late clerk referred to in the EEO settlement agreement. The Agency noted this number did not include Saturdays and did not include any higher level hours worked at any other station. The Agency determined it was in compliance with the September 16, 2010 settlement agreement.
On appeal, Complainant contends the 224.79 hours noted in Agency's final decision are wrong for the period in question and argues she is entitled to more hours. Complainant also states that the Agency is arbitrarily denying payment of higher level pay as it had done prior to filing of her complaint. Additionally, Complainant states that Person A has also denied her overtime and detail assignments.
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).
Upon review, we are unable to determine whether the Agency has complied with the terms of the September 16, 2010 settlement agreement. According to the terms of the agreement, the Agency was to review the overtime hours where a non-OTDL person worked instead of Complainant from March 1 to August 1, 2010. The Agency was then required to pay Complainant for the instances when she should have received the overtime work. Although the settlement agreement estimated that this would be about ten hours, there is no evidence in the record showing how many hours the Agency determined Complainant was entitled to be reimbursed for from March 1 to August 1, 2010, and whether Complainant was paid the correct amount of overtime due.
Additionally, under the agreement the Agency agreed to assign Complainant to higher level work with preference to her until her hours equal those paid to the other late clerk and then for the two clerks higher level work will be distributed equally/equitably from that time forward. The agreement specified the time for retroactive hours was from June 1, 2009, to June 1, 2010. In its final decision, the Agency stated that Complainant received 224.79 hours less than the higher level hours received by the other late clerk referred to in the EEO settlement agreement. The Agency noted this number did not include Saturdays, nor did it include any higher level hours worked at any other station. Complainant contended that she was due additional hours. Upon review of the record, we note that the Agency did not show how it determined that Complainant received 224.79 hours less than the higher level hours received by the other late clerk referred to in the settlement agreement.
While the Agency contended that PS Form 8041, Agency Settlement Worksheet, was completed and submitted to Eagan Payroll Services Branch, in Eagan Minnesota, we note there is no evidence this action was done. The Agency claimed the Eagan Payroll Office confirmed that the completed form was received in their office on October 21, 2010, and payment was processed on November 4, 2010. The Agency noted that the Eagan Payroll Office stated that a check in the amount of $382.95 will be mailed to the Agency. However, the record contains no evidence to show how the stated amount of $382.95 was determined or that the requisite payment was actually made to Complainant. As such, we shall vacate the Agency's decision and remand the matter to the Agency for evidence showing whether the agreement has been complied with.
CONCLUSION
Accordingly, the Agency's final decision is VACATED and the matter is REMANDED to the Agency for a supplemental investigation in accordance with the Order herein.
ORDER
Within 60 days from the date this decision becomes final:
(1) The Agency shall supplement the record with affidavits and/or other documentary evidence indicating the number of hours of overtime Complainant is due from March 1 to August 1, 2010, and indicating whether it paid Complainant for the requisite overtime due.
(2) The Agency shall supplement the record with affidavits and/or other documentary evidence indicating that it assigned Complainant to higher level work as required with preference to her until Complainant's hours equal those paid to the other late clerk and then for the two clerks' higher level work will be distributed equally/equitably from that time forward.
(3) The Agency shall issue a new final decision regarding whether it is in compliance with the September 16, 2010 settlement agreement.
A copy of the Agency's supplemental investigation and new final decision shall be provided to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 ot 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 (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), 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 (R0610)
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 (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
October 24, 2012
__________________
Date
2
01-2011-1157
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111157