Gwendolyn M. Williams, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 6, 2004
01A34526_r (E.E.O.C. Feb. 6, 2004)

01A34526_r

02-06-2004

Gwendolyn M. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Gwendolyn M. Williams v. United States Postal Service

01A34526

February 6, 2004

.

Gwendolyn M. Williams,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A34526

Agency No. 1-H-331-0060-02

DECISION

Complainant filed a timely appeal with this Commission from an agency

final decision dated June 27, 2003, finding that it complied with an

August 20, 2002 settlement agreement. The Commission accepts the appeal.

See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �

1614.405.

The August 20, 2002 settlement agreement provided, in pertinent part,

that:

(1) [Complainant] will obtain a revised schedule after submitting medical

documentation of [complainant's] required therapy sessions and a CA-17

form to [named supervisor] (herein referred to as NS);

(2) The revised schedule will be renewed each month until it is no

longer needed;

(3) Documentation will also reference [complainant's] need to go home

directly following her therapy session; and

(4) [NS] will be responsible for approving the revised schedule.

Complainant claims that she submitted medical documentation in October

2002, which indicated that she was being treated with certain medications,

which in turn caused her to develop a sleep disorder (insomnia),

and that a work schedule of 7:00am to 3:00pm for 90 days would be

beneficial. Complainant avers that she was given a Tour 2 schedule based

on this medical documentation, but that when she submitted essentially

the same statement in April 2003, her request to continue working a Tour

2 schedule was disapproved by NS, and she was reassigned to Tour 3.

In its final decision, the agency noted that it obtained information

from NS and another manager (AM) in order to address complainant's

breach claim. The agency noted that NS stated that under the terms of

the settlement agreement, complainant was obligated to provide him with

monthly medical statements, and that based thereon, her revised schedule

would then be approved. Additionally, the agency noted that NS stated

that the medical documentation provided by complainant failed to comport

with the terms of the settlement agreement. Specifically, the agency

indicated that NS stated that the settlement addressed complainant's

3:00pm physical therapy appointments, as well as complainant's inability

to return to work afterwards because of pain. NS further stated that

medical documentation submitted by complainant in August 2002 and April

2003, which advocates a change of tour assignment due to insomnia,

falls outside the scope of the settlement agreement. The agency then

indicated that AM contended that she had no significant role in this

matter. Accordingly, based on this information, the agency determined

that the settlement agreement had not been breached.

On appeal, in pertinent part, complainant argues that NS has no legitimate

reason to explain why he accepted her medical documentation in October

2002, as sufficient to justify a change in her schedule to Tour 2,

and yet refused to accept nearly identical documentation in April 2003,

and disapproved her request to remain in Tour 2. Complainant also

claims that NS and AM have engaged in conduct, and undertaken various

actions against her, all for the purpose of harassing her, and that

she has filed EEO complaints, appeals to the Department of Labor, and

union grievances, to address these matters.

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).

In the instant case, based on its plain meaning, we concur with the

agency that the terms of the settlement agreement contemplate a change

in complainant's schedule, to be approved monthly, to facilitate her

required physical therapy, and her need to go directly home afterwards.

The Commission recognizes that the agency may have approved a change in

her schedule based on the October 2002 medical documentation concerning

her insomnia; however, the Commission further determines that the October

2002 medical documentation was unrelated to required physical therapy

sessions and/or the need to return home thereafter. Therefore, we find

that the initial approval for a Tour 2 schedule based on the October 2002

medical documentation is outside of the scope of the settlement agreement.

Consequently, we also find that NS's disapproval of complainant's

request to remain in a Tour 2 schedule, based on the nearly identical

April 2003 medical documentation cannot be viewed as a breach of the

settlement agreement. In fact, it does not appear that complainant

ever submitted the required medical documentation needed to implement

the terms of the settlement agreement, i.e., monthly medical statements

describing her need for physical therapy, the schedule of these sessions,

and the continued need to return home after each session.

Although we note that complainant avers that her need for a tour schedule

change because of her insomnia is related to the schedule change

described in the settlement agreement, because they both concern the

same injury, we are not convinced that this is sufficient to bring her

request to remain in Tour 2 within the scope of the settlement agreement.

Instead, we find that this claim is best viewed as a separate complaint

concerning the agency's alleged failure to provide complainant with a

reasonable accommodation. Therefore, if she has not already done so,

we advise complainant to contact an EEO Counselor if she wishes to pursue

further this matter

Furthermore, although from her statements it appears that complainant

may have already filed a separate EEO complaint (and union grievances)

regarding her claims of retaliatory harassment by NS and AM, in the

event that she did not actually follow through on her stated intentions,

we advise complainant to contact an EEO Counselor regarding this matter

as well, which also must be treated as a separate complaint. See 29

C.F.R. � 1614.504(c).

In conclusion, for the reasons set forth above, we AFFIRM the agency's

final decision finding no breach of the settlement agreement.

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

February 6, 2004

__________________

Date