0120113852
01-20-2012
Joan A. Peterson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Joan A. Peterson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120113852
Agency No. 6K-000-0001-11
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated August 3, 2011, 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 Secretary at the Agency’s Headquarters facility in Windsor,
Connecticut. Believing that the Agency subjected her to unlawful
discrimination, Complainant contacted an Agency EEO Counselor to
initiate the EEO complaint process. On April 21, 2011, Complainant and
the Agency entered into a settlement agreement to resolve the matter.
The settlement agreement provided, in pertinent part, that:
(1) The parties agree that Complainant, Manager 1, Manager 2,
Secretary, and Engineer will collaboratively work on updating the work
responsibilities and tasks for Complainant’s current position as a
secretary. The parties agree to complete this process on or before June
1, 2011. The parties agree to identify tasks and work in other areas,
including lessor maintenance, or other areas where Complainant may be
able to do additional work in order to provide duties that will keep her
more fully occupied. Compensation for such work shall be in accordance
with the Employment and Labor Relations Manual (ELM). Complainant will
provide any medical restrictions to Manager 1 by May 1, 2011.
(2) Manager 1 will complete [Office of Workers Compensation
Programs] and privacy awareness training within 30 days of the agreement.
Both parties will complete a course on “Interpersonal Communications:
Being Approachable” within 30 days of this agreement.
(3) The parties will make a determination about what the pay
differential was for the position Complainant held as a customer service
representative. Complainant agrees to submit information concerning the
pay differential to Manager 1 and the Agency Attorney within 30 days.
The Agency agrees to review and evaluate the information provided by
Complainant and to make a back pay adjustment in accordance with the ELM.
By letter to the Agency dated June 30, 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 comply with provisions
(1) and (3). Complainant asserted that the Engineer appeared for a
meeting of all the individuals listed in provision (1) to collaborate
on Complainant’s work responsibilities. Complainant believed that
the departure of the Engineer was a breach of the settlement agreement.
Complainant also alleged that provision (3) of the settlement agreement
had been breached. Complainant sent Manager 1 an email dated June 2,
2011. In that email, Complainant provided that from July 6, 2009 to
October 16, 2009 and from November 20, 2009 through February 5, 2010,
she worked at the higher grade. Complainant asserted that, for 100 weeks,
she was owed 5% of higher pay. In her claim of breach, Complainant also
asserted that there was an understanding that she would be detailed to
a Customer Service Representative Position as one became vacant.
In its August 3, 2011 FAD, the Agency concluded that it did not breach
the settlement agreement. As to provision (1), the Agency noted that
Manager 1 was the Engineer’s supervisor so anything he did would have
to be reviewed by Manager 1. Therefore, the Engineer’s absence from
one meeting did not violate the settlement agreement. Further, the
Agency indicated that there was no provision in the settlement agreement
providing Complainant with the detail. In addition, the Agency argued
that Complainant had been offered such details.
As to provision (3), the Agency obtained an affidavit from Manager 1.
Manager 1 stated that Complainant provided him with the email. Following
the email, Manager 1 found the information provided by Complainant
was insufficient. Therefore, Manager 1 reviewed timekeeping records
from December 22, 2008 through December 17, 2010. He determined that
Complainant had been paid for all the higher level work she performed
during that time frame. As such, he did not believe that Complainant
was owed any higher level pay.
Complainant appealed. On appeal, Complainant claimed that the Agency
breached the settlement agreement. She argued that the Engineer’s
absence at the meeting means the parties did not get collaboration
as required by provision (1). As to provision (3), it appears that
Complainant argued that during the whole time period requested,
Complainant believed she worked in a higher paid position. As such,
Complainant asserted that the Agency failed to comply when it did not
give her the pay differential she requested. The Agency asked that the
Commission affirm its determination.
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).
In the instant case, we find that the Agency did not breach the
settlement agreement. We agree with the Agency’s determination
that there was no provision within the settlement agreement providing
Complainant with a detail to a Customer Service Representative position.
Therefore, Complainant was not entitled to such a detail pursuant to
the settlement agreement.
As to provision (1), the record indicated that the Engineer was present
at the meeting called by Manager 1 to accomplish this provision of the
settlement. However, the Engineer left the meeting for personal reasons.
Regardless of the Engineer’s attendance, the record included a copy of
an email in which the duties were adjusted and the Engineer along with the
other parties listed in the settlement agreement were given a copy of the
drafted duties for which to review and make comments. One of the emails
clearly shows that the Engineer made suggestions which were incorporated
into the document. Therefore, although the Engineer was not present
for the duration of one meeting, the record showed that he was involved
in the collaborative effort. As such, we find that Complainant has not
shown that the Agency breach provision (1) of the settlement agreement.
As to provision (3), we note that Complainant summarily asserted in an
email that she had worked a higher paid position from July 6, 2009 to
October 16, 2009 and from November 20, 2009 through February 5, 2010.
Complainant failed to provide any supporting evidence for her assertions.
Manager 1 provided an affidavit where he indicated that he reviewed
Complainant’s time keeping records and found that Complainant had
been paid at a higher rate for over 50 weeks out of the 100 weeks she
had listed. Further, he noted that the weeks she was not paid at a
higher rate was because she was not performing those duties. As such,
Manager 1 did not find that Complainant was owed a pay differential.
We note that provision (3) merely required the Agency to review and
determine if Complainant was owed money. Manager 1 averred that he
did the calculations and found that Complainant was not owed a pay
differential. We find that the Agency has not breached provision (3).
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
January 20, 2012
__________________
Date
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0120113852
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113852