0120120852
12-13-2012
Wanda Kusy-Carpenter, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Wanda Kusy-Carpenter,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120120852
Agency No. 4G-770-0073-03
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 20, 2012, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Memorial Park Station facility in Houston, Texas.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On November 13, 2002, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(3) [Complainant] will be allowed to revise her schedule to 7 a.m. for medical appointments when she is unable to make an appointment late in the [day] that wouldn't warrant a revision.
The record indicated that, on June 11, 2011, Complainant contacted the EEO Office to file a complaint of discrimination alleging that the Agency denied her request for a schedule change on June 28, 2011. When the matter could not be resolved informally, Complainant filed a formal EEO complaint on September 14, 2011. The Agency dismissed the EEO Complaint and noted that Complainant had also alleged that this claim constituted a breach of provision (3) of the November 13, 2002, settlement agreement. The EEO Complaint was the subject of our decision in EEOC Appeal No. 0120120642.
Subsequently, by letter to the Agency dated December 28, 2011, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to provide her with a change in schedule on June 28, 2011.
In its March 20, 2012 FAD, the Agency concluded that Complainant failed to notify the Agency of the breach in a timely manner. The Agency indicated that Complainant contacted the EEO Office in December 2011, well beyond 30 days from the alleged breach which occurred effective June 28, 2011. Further, the Agency noted that the Agency had complied with provision 3 of the settlement agreement for over eight years. The Agency stated that the settlement agreement cannot be expected to continue ad infinitum. Therefore, the Agency found no breach of the settlement agreement.
ANALYSIS
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 instant case, we note that the Agency had indicated that Complainant had contacted the EEO Office in June 2011, regarding the denial of the schedule change. Therefore, we determine that Complainant contacted the Agency within 30 days of the alleged breach. As such, we find that the Agency's determination erroneously found the matter untimely.
The record noted that this was the only denial over eight years following the settlement agreement. In the absence of a specific time frame in a settlement agreement, it is interpreted to be for a reasonable amount of time. Parker v. Dep't of Defense, EEOC Request No. 05910576 (August 29, 1991). Furthermore, we note that Complainant failed to indicate that she was late for her medical appointment. See Kusy-Carpernter v. U.S. Postal Serv., EEOC Appeal No. 0120120642 (Nov. 5, 2012). As such, we cannot find that the Agency breached the settlement agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination finding no breach of the settlement agreement.
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
December 13. 2012
__________________
Date
2
0120120852
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120852