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
2
0120102625
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120102625
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