Linda L. Kelly, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.

Equal Employment Opportunity CommissionDec 2, 2010
0120102625 (E.E.O.C. Dec. 2, 2010)

0120102625

12-02-2010

Linda L. Kelly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.




Linda L. Kelly,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Eastern Area),

Agency.

Appeal No. 0120102625

Agency No. 4C400003809

DECISION

Complainant filed a timely appeal with this Commission from the Agency’s

July 20, 2010 letter of determination, finding that it was in compliance

with the terms of the December 13, 2009 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.

The settlement agreement provided, in pertinent part, that the agency

shall:

(1) Change the seniority date of Complainant from August 15, 2009 to

January 17, 2009;

(2) Complainant’s sick leave and annual leave accounts will be credited

the leave she would have accrued had she become a full-time regular

effective January 17, 2009, rather than when she became full-time regular

effective August 14, 2009; and,

(3) Said changes will take a effect within thirty days of the approval

of this settlement agreement by the Commission

By letter to the Agency dated March 17, 2010, Complainant alleged that

the Agency was in breach of the settlement agreement, and requested

that the Agency specifically implement its terms. Complainant alleged

that the Agency had not complied with any of the above-mentioned terms.

Subsequently, the Agency conducted an inquiry and determined that it

was not in compliance with the settlement agreement. As a result of

the inquiry, on June 18, 2010, the Agency credited Complainant’s

leave accounts with 45 hours of annual leave and 45 hours sick leave.

Additionally, the Agency determined that Complainant’s leave computation

date (LCD) and listing on the Seniority list had been changed to January

17, 2009, effective March 13, 2010. As a result, the Agency concluded

that it had complied with the Settlement Agreement.

On appeal, Complainant alleges that seniority dates are synonymous with

retirement computation and TSP service computation dates and that the

Agency had failed to change any of them. Further, Complainant contends

that the Agency has also not changed her next step increase. Accordingly,

Complainant contends that the Agency has not complied with terms of the

settlement agreement.

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, the Commission finds that Complainant has

not demonstrated that the Agency breached the settlement agreement.

Complainant alleges that the Agency failed to change her seniority date

to coincide with her retirement computation and TSP service computation

dates. Complainant asserts that seniority, retirement computation, and

TSP service computation dates are synonymous. Upon review, the Commission

disagrees. An employee’s seniority date and her leave and retirement

computation date are two separate dates. Cheatham v. U.S. Postal Serv.,

EEOC Appeal No. 01940300 (Oct. 6, 1994); see also Dunton v. U.S. Postal

Serv., EEOC Request No. 05970415 (April 8, 1999). The settlement

agreement between the Complainant and the Agency states that the Agency

will change Complainant’s “seniority date” from August 15, 2009

to January 17, 2009. Applying the “plain meaning rule” to the term

“seniority date,” and in viewing the four corners of the instrument,

there are no facts or evidence to support Complainant’s assertions

that the Agency agreed to change her seniority date to coincide with her

retirement computation and TSP service computation dates. Furthermore,

the Agency provided evidence that Complainant’s seniority date

on its Seniority Report had indeed been changed to January 17, 2009.

Accordingly, the Commission finds that the Agency has complied with this

provision of the settlement agreement.

As to Complainant’s assertions that the Agency failed to credit

her annual and sick leave accounts, the Commission notes that as of

August 31, 2010, Complainant concedes that the Agency has adhered to

this portion of the agreement. Specifically, Complainant provides a

statement in support of her appeal which states “I have received all

leave promised.” Furthermore, the Agency presented evidence that

Complainant was indeed provided 45 hours of annual leave and 45 hours

of sick leave. Accordingly, the Commission finds that the Agency has

complied with this portion of the settlement agreement.

Finally, as to Complainant’s assertions that the Agency failed to

timely comply with the terms of the settlement agreement, the Commission

finds that the Agency has substantially complied. The Commission has

found substantial compliance with the terms of a settlement agreement

where agencies have committed, in good faith, a technical breach of a

provision of the agreement which did not undermine its purpose or effect.

The Commission has also found that the failure to satisfy a time-frame

specified in a settlement agreement does not prevent a finding of

substantial compliance of its terms, especially when all required actions

were subsequently completed. Mopsick v. Dep't of Health and Human

Services, EEOC Appeal No. 0120073654 (Aug. 17, 2009) (citing Lazarte

v. Dep't of the Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996));

Sortino v. U.S. Postal Serv., EEOC Request No. 05950721 (Nov. 21, 1996).

The Agency asserts that confusion and disagreement over the number of

leave hours due to Complainant caused delay in adjusting Complainant’s

leave balances. Further, Complainant used leave during the period in

question which made calculations more difficult. Nonetheless, the Agency

credited Complainant’s leave balances with the appropriate amount of

hours and Complainant has stated that she received the promised sum.

Likewise, Complainant’s seniority date has been adjusted as agreed.

Thus, while there was a delay with respect to the agreed-upon adjustments,

the Commission finds that the Agency substantially complied with the

terms of the agreement.

CONCLUSION

Accordingly, the Commission AFFIRMS the Agency's final 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), 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

December 2, 2010

Date

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0120102625

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120102625

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