0120062410
10-26-2006
Barbara L. Martinez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barbara L. Martinez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200624101
Agency No. 1E-802-0025-03
DECISION
On February 27, 2006, complainant filed an appeal with this Commission
from a final decision by the agency dated February 22, 2006, finding that
it was in compliance with the terms of the September 5, 2003 settlement
agreement into which the parties entered. See 29 C.F.R. �� 1614.402;
.405; and .504(b).
The settlement agreement provided, in pertinent part, that:
As a result of this Redress session, [complainant] and [management] will
coordinate all relevant information allowing [management] to develop a
new job offer for [complainant] in accordance with her current activity
restrictions working in T-2. The target for completion of the job offer
is 30 September 2003. In the interim, [complainant] will remain on T-2
with Monday & Tuesday as days off.
At the time of the settlement agreement, complainant was employed
as a Full-time Regular Clerk at a Colorado facility of the agency.
In a letter dated February 1, 2006, complainant alleged that the agency
breached the settlement agreement by forcing her to work overtime in her
limited duty position on January 12 and 13, 2006, and requested that
the agency reinstate the above-indicated EEO complaint. In addition,
complainant requested compensatory damages in the amount of $5,000.00.
In a final decision dated February 22, 2006, the agency stated that it
did not breach the September 5 settlement agreement. Specifically,
it explained that (1) the activity restrictions on file at the time
of settlement were dated October 17, 2001, (2) the agency presented
complainant with a letter identifying a limited duty assignment on
September 19, 2003 and allowed her to present the document to her
physician (P1) for review, (3) the agency requested a current Office
of Workers' Compensation Programs Duty Status Report (CA-17) from
complainant and P1 recommended a job site analysis for the current
job offer, which was conducted on November 13, 2003, (4) the agency
presented complainant with a Modified Limited Duty Assignment dated
January 7, 2004 and complainant signed the offer on January 16, 2004,
(5) none of complainant's work restrictions prior to January 16, 2004
identify a restriction on working overtime, and (6) a CA-17 dated after
the scheduled overtime, January 19, 2006, stipulates "no more than 5
days per week, 8 hours per day" of work for complainant. Summarily,
the agency stated that there were no overtime restrictions in place for
complainant on the dates-at-issue herein - January 12 and 13, 2006.
Complainant filed the instant appeal. On appeal, complainant stated
that the January 16, 2004 Modified Limited Duty Assignment provides
that complainant will work eight hours per day, begin her tour of
duty at 6:15 a.m., and have Monday and Tuesday as non-scheduled days.
Complainant stated that the Assignment did not provide for overtime and
she was not scheduled to work overtime until December 2005, which she was
unable to do because of illness, and then January 16, a Federal holiday.
Complainant added that her medical documentation clearly states that
she is restricted to working eight hours per day, five days per week.
In opposition to complainant's appeal, the agency stated that it complied
with the September 5 settlement agreement in that it developed and offered
complainant a Modified Limited Duty Assignment and complainant accepted
the offer. The agency acknowledged that the job offer was not finalized
until January 16, 2004, but stated that the agency worked consistently on
the offer and both parties agree the delay was due to extensions by both.
Further, the agency stated that the agreement did not provide details
on the specifics of the job offer and complainant's discontent with the
new job should be addressed as a new claim rather than as a breach.
Finally, the agency stated that the number of hours and days of work
indicated on the various evidence of record is indicative of full-time
status rather than a restriction.
The record includes: a Modified Limited Duty Assignment Job Description
dated January 16, 2004, indicating "# Hours/Day: 8;" a CA-17 dated
November 18, 2003 indicating the employee works eight hours per day,
five days per week; a Job Site Analysis dated November 19, 2003
stating "[a]ccording to the Job Description provided by [the injury
compensation coordinator, the position would be for 8 hours per day on
Wednesday through Sunday;" a Holiday Schedule scheduling complainant for
overtime on one of her two non-scheduled days, Monday January 16, 2006;
and Request for or Notification of Absence forms for January 16, 2006,
for complainant, that were disapproved for "services needed, holiday
schedule."
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).
First, although complainant did not raise the delay of the job offer as
a breach, we find it significant to note that the Commission has held
that failure to satisfy a time frame specified in a settlement agreement
does not preclude a finding of substantial compliance of its terms,
especially when all required actions were subsequently completed.
Sortino v. United States Postal Service, EEOC Request No. 05950721
(Nov. 21, 1996)(citing Baron v. Department of the Treasury, EEOC Request
No. 05930277 (Sept. 30, 1993)). In the instant case, the record reveals
that the agency worked consistently with complainant to create a suitable
job offer for complainant, albeit, the final offer resulted three and
a half months after the targeted completion date. Thus, the Commission
finds no evidence in the record that the agency's delay was the result
of bad faith or undermined the purpose or effect of the agreement, and
the agency has substantially complied with the September 5 settlement
agreement as to that matter.
Second, regarding the scheduling of complainant for overtime in January
2006, we find that the agency complied with the settlement agreement.
The record reveals that the agency offered complainant a Modified Limited
Duty Assignment Job Description, which she accepted on January 16, 2004.
We acknowledge that the job description indicates eight hours per day,
with Monday and Tuesday as non-scheduled days; however, we conclude that
the agreement does not specifically address overtime and does not provide
a duration in which complainant will hold the position. In addition,
complainant stated that she was not scheduled for overtime between
accepting the job offer in January 2004 and December 2005. We find that
the plain meaning of the settlement agreement includes an understanding
that the genuine future needs of the agency, or complainant's subsequent
career decisions, can reasonably be expected to impact both the specified
position and the duty hours described in the agreement. Thus, we find
it reasonable that the agency's needs would have evolved to necessitate
complainant working overtime on a non-scheduled day two years after
complainant accepted an agency job offer, and, consequently, that the
agency did not breach the September 5 settlement agreement. We advise
complainant, if in the future, she believes that the agency's actions are
discriminatory in that it has failed to provide reasonable accommodation,
she has the right to initiate contact with an EEO Counselor within
forty-five days of the alleged discriminatory action or the effective
date of the action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 26, 2006
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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2
01A53582
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120062410