01A04015
02-02-2001
Kirandip Dhaliwal, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kirandip Dhaliwal v. United States Postal Service
01A04015
February 2, 2001
.
Kirandip Dhaliwal,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04015
Agency No. 1F-946-0019-00
DECISION
On May 16, 2000, complainant filed an appeal with this Commission from an
agency decision dated April 14, 2000, finding that it was in compliance
with the terms of the February 4, 2000 settlement agreement into which the
parties entered.<1> See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) [Complainant's supervisor] has no objection to [complainant] working
six days per week and the same hours as other part time flexible employees
with the same schemes.
(2) [Complainant's supervisor] will inform [Manager] of that fact.
(3) [Complainant's supervisor] will investigate [complainant's] allegation
that other PTFs were working longer hours between October 18, 1999 and
January 8, 2000. If that proves to be true [complainant's supervisor]
will recommend that [complainant] be paid back pay for those hours.
On March 15, 2000, the agency received a letter from complainant alleging
that the agency �failed to carry out the mediation settlement to my
complaint.� Complainant stated that she wanted to proceed with her EEO
complaint or �revisit� the settlement agreement.
In its April 14, 2000 decision, the agency concluded that it had not
breached the settlement agreement. Specifically, the agency noted
that complainant's supervisor investigated complainant's work hours and
the work hours of two other employees. The supervisor concluded that,
based on her medical limitations, complainant was not entitled to work
any more hours than what she had received.
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 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).
The plain meaning of provisions 1 and 2 of the agreement does not impose
an affirmative agency obligation to provide complainant with additional
hours. Provision 1 simply states that complainant's supervisor �has
no objection�to complainant working the same hours as other Part Time
Flexible employees; and provision 2 simply indicates that this lack of
an objection will be conveyed to another agency official. Therefore,
despite complainant's contention that the agency is reducing her work
hours, we find that provisions 1 and 2 were not breached. The agency's
decision finding no breach of provisions 1 and 2 is AFFIRMED.
However, with respect to provision 3 of the agreement, the agency has
not provided any evidence that complainant's claim was investigated.
The agency decision provides the names of two employees whose work
hours were compared to complainant's work hours during the supervisor's
investigation. One of the cited employees is named by complainant in
her formal complaint. However, the other employee has not been cited by
complainant as a comparative employee. On appeal, complainant provides
documents regarding hours that she worked, and two other employees named
in the formal complaint. The documents provided by complainant appear
to contain information regarding hours worked, but we are unable to make
a determination regarding provision 3 without further clarification.
For example, although a year and a pay period number are included on
each page, we are unable to determine which time period is covered by
the documents. Therefore, a supplemental investigation on the matter
will be conducted, as we are unable to ascertain whether provision 3 of
the settlement agreement has been breached. The agency's decision finding
no settlement breach of provision 3 is VACATED and this matter is REMANDED
to the agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall supplement the record with documentation showing
whether the agency has complied with provision 3 of the settlement
agreement. The supplementation of the record shall include, but not
be limited to, documentation reflecting the hours worked by complainant
and relevant co-workers (part time flexible workers) between October 18,
1999 and January 8, 2000; whether these co-workers worked longer hours
than complainant; and whether the named agency official in provision
3 will recommend that complainant be paid back pay if the co-workers
worked longer hours than her.
2. The agency shall thereafter issue a new final decision addressing
the alleged breach of provision 3 within thirty (30) calendar days of
the date this decision becomes final.
A copy of the agency's new final decision must be submitted to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 2, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.