0120064622
06-17-2008
Esmeralda Gutierrez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Esmeralda Gutierrez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200646221
Agency No. 1C443001804
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 10, 2006, finding that it was in
compliance with the terms of the March 3, 2004, settlement agreement
(SA). See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29
C.F.R. � 1614.405. Based on the record before us, we find that the
agency breached the SA by denying complainant overtime opportunities at
the Main facility.
The SA provided, in pertinent part, that complainant "will be placed on
the overtime desired list (ODL) that she signs, by seniority, effective
[March 3, 2004]." According to the bid award document in the record,
dated November 5, 2001, complainant was a distribution clerk at the
Youngtown Post Office, Cornersburg station, working from 4:00 am to
12:30 pm. The document noted that the incumbent "may be required to
travel to main office to end tour," although the document does not state
a specific number of hours at either facility. However, according to
complainant and an agency official, she worked her first four hours at
Cornersburg and her final four hours at the Main facility. The record
also contains a one-page "consultation" form signed by a union and a
management official, dated May 30, 2006 (to be effective June 24, 2006),
that confirmed complainant's assignment to Cornersburg from "0400 to 0800"
and to the main facility from "0800 to 1230."2
On June 10, 2006, complainant addressed the agency stating that union
officers had been harassing her for the past three months, disputing her
right to sign the ODL at the facility. In its FAD, the agency explained
that it could no longer allow her to sign the ODL at the Main facility,
because union officials stated that complainant's overtime work at the
main facility violated Section 2(H) of the Collective Bargaining Agreement
(CBA). Section 2(H) states, in full:
Utility Clerks will sign the "OTDL" and will be scheduled for the overtime
by the office where he/she works the majority of the time.
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).
After a review of the documents in the record and the parties' statements,
we find that the agency, in consultation with (or at the behest of)
the union, failed to establish that it did not breach the SA. First,
we cannot find any reference in the documents of record to complainant's
assignment as a utility clerk and, thus, question that Section 2(H),
in fact, applies to complainant. Indeed, her bid award shows that she
was assigned to the position of distribution clerk. Next, on its face,
the consultation form shows that she is assigned to the main facility
for the majority of her time, notwithstanding that she is accorded
travel and lunch time. Thus, we find no impediment to complainant
working overtime at the main facility, and, because it did not allow
her to sign for overtime at the main facility, we find that the agency
breached the SA.3 Finally, we note that the SA authorized complainant
to work overtime from the ODL "that she signs." Therefore, inasmuch as
she signed for overtime work at the main facility, the agency has not
shown that there is any impediment to complainant working said overtime.
CONCLUSION
Accordingly, the agency determination that it did not breach the SA is
hereby reversed. The agency is directed to comply with the Order below.
ORDER
The agency is ordered to take the following remedial action:
From the date this decision becomes final, the agency shall comply with
the terms of the SA and provide complainant the opportunities to sign
for and work overtime at the main facility, without interference.
The agency shall submit a report of compliance, as provided in the
statement entitled "Implementation of the Commission's decision."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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 (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 (Z0408)
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
__06/17/2008________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The agency does not explain the significance of a 'consultation form,'
nor what the "x" after "non-concur" means. We note, moreover, that this
form was created more than two years after the SA and is not signed or
approved by complainant.
3 The agency does not explain why the union representatives objected
to complainant signing for overtime at the main facility more than two
years after the SA.
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0120064622
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064622
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