0120102245
08-27-2010
Rita Delgado, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Rita Delgado,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120102245
Agency No. 1E801004108
DECISION
Complainant filed a timely appeal with this Commission from a final determination (FD) by the Agency dated April 9, 2010, finding that it was in compliance with the terms of the May 23, 2008 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. For the reasons that follow, we AFFIRM the Agency's FD.
ISSUE PRESENTED
Whether the Agency complied with the terms of the settlement agreement.
BACKGROUND
The settlement agreement provided, in pertinent part, that:
1. [Claims Specialist (CS-1)] will not be the claims specialist for [Complainant] from now forward effective Friday, May 23, 2008;
2. [Claims Specialist (CS-2)] will be the claims specialist assigned to [Complainant's] case as long as CS-2 works in the Health and Resources Management (HR&M) office;
3. [Claims Specialist (CS-3)] will work to resolve all aspects of the current case prior to 05/23/08;
4. Communication will be primarily in writing; all documents will be signed and dated;
5. [IT Specialist (IT-1)] will contact [Complainant's supervisor] for computer access and a computer to use to include a printer; and
6. On Tuesday, May 27, 2008, IT-1 and Complainant will meet with [Complainant's supervisor] to ensure computer access and use by 06/06/2008.
By letter to the Agency dated February 4, 2010, Complainant alleged that the Agency was in breach of the settlement agreement and requested that the Agency specifically implement all of its terms. Specifically, Complainant averred that the ICCO Manager (ICM) informed her that she would give her updated paperwork to CS-1 for processing. Complainant also averred that on February 4, 2010, she went to the ICCO office to have documents copied and stamped. Complainant averred, however, that CS-1 was the only employee visible, and he claimed that he was the sole employee at the ICCO office. Thereafter, CS-1 copied and stamped the documents. Complainant averred that she subsequently observed another claims specialist walk in from the back of the office. Complainant asserts that these incidents resulted in a breach of provision (1), as CS-1, per the agreement, was to have no contact with her from May 23, 2006, onward. Complainant also alleges that the Agency breached provision (5) of the agreement when S1, Supervisor Distribution Operations, took away her computer access on February 4, 2010.
In its April 9, 2010, FD the Agency concluded that no breach of the agreement had occurred. Specifically, the Agency found that management had taken appropriate actions to ensure that CS-1 would not serve as Complainant's Claims Specialist. Specifically, the Agency noted that management appointed CS-2 as Complainant's CS and she remained in this role until she left the Agency in June 2009. After CS-2 left, another Specialist served as Complainant's Claims Specialist. With regard to the comments by the ICM, the Agency noted that although she told Complainant that she would give her paperwork to CS-1 for processing, this never occurred. Once ICM, who was not aware of the settlement agreement, spoke to CS-1, he informed her that he was not the Specialist handling Complainant's case and should not be involved in anyway in accordance with the settlement agreement.
With regard to Complainant's allegation that the Agency also violated provision (1) of the agreement when CS-1 copied and stamped her documents on February 4, 2010, the Agency noted that CS-1 informed Complainant that she could leave and return the next day to have her documents processed. Further, the Agency found that with respect to provision (5), while Complainant's computer access was disconnected, the agreement did not stipulate that computer access would continue indefinitely. Moreover, the Agency noted that Complainant's computer access was discontinued because she had placed on "full day no work" status pursuant to the National Reassessment process. On these grounds, the Agency found that management had complied with the terms of the settlement agreement.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, in pertinent part, that ICM "walked her out of the facility on February 4, 2010, and said that she would have [CS-1] review [her] documents again." Complainant's Appeal Brief. Complainant avers that she was provided full access to the computers until CS-3 had completed "all issues of her EEO." Further, Complainant avers that S1 discontinued her access to a computer. Complainant also reiterates arguments that she previously made. In this regard, Complainant reiterates that the Agency breached the settlement agreement when she attempted to have documents stamped at the ICCO and she had no choice but to give CS-1 the documents because he stated that he was the only specialist at the ICCO at that time. Complainant avers that CS-1's comment that he was the only specialist was a lie because she observed another specialist left the ICCO office whom she greeted. Complainant avers that pursuant to the settlement agreement, she was entitled to receive full computer access until the REDRESS "issues were met."
On appeal, the Agency requests that the Commission affirm its FD.
FINDINGS AND ANALYSIS
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 has complied with the settlement agreement. With respect to provision (1), the Agency took appropriate steps to ensure that CS-1 would not serve as Complainant's Claims Specialist. In this regard, the record indicates that the agency assigned CS-2 to Complainant's case beginning May 23, 2008 through approximately June 2009, at which time CS-2 left the Agency. Further, beginning from June 2009, Complainant's case was subsequently assigned to another Claims Specialist. The ICM, unaware of Complainant's EEO settlement, told Complainant that CS-1 would be processing her updated paperwork, but this never occurred, because CS-1 informed the ICM about the settlement agreement. Therefore, we find no violation.
We also find that the record indicates that CS-1 took appropriate steps to avoid contact with Complainant. Specifically, with respect to the February 4, 2010, incident, CS-1 informed Complainant that she did not have to deal with him and that she could return the following day with the documents she wanted stamped and copied. The record indicates that, despite this, Complainant voluntarily requested that CS-1 process the documents. We find that while CS-1 did assist Complainant with her paperwork, the non-compliance, to the extent it occurred, was attributable to the conduct of Complainant. Therefore, we find no violation.1
Finally, with respect to provision (5), the record indicates that Complainant was provided with computer access from May 7, 2008, until February 4, 2010. According to S1, Complainant did not need a computer anymore because she would not be working after being placed in a "full day no work" status. We note that the agreement did not specify a specific length of time for which she would be provided with access to a computer. The Commission has held that when a specific time frame is not specified, the Agency is required to act, or refrain from acting, for a reasonable period of time. See Garcey v. United States Postal Service, EEOC Appeal No. 01A24396 (September 3, 2003). Parker v. Department of Defense, (Defense Logistics Agency) EEOC Request No. 05910576 (August 29, 1991) (agreement that did not specify length of service for position to which Complainant was promoted was not breached by the temporary detail of complainant two years after the execution of the settlement agreement). Applying these principles to the instant case, we find that the Agency complied with the terms of the agreement for a reasonable period of time. We find nothing in the agreement to support Complainant's contention that, pursuant to the settlement agreement, she was entitled to receive full computer access until the REDRESS "issues were met."
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's FD finding no breach.
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
___8/27/10_______________
Date
1 Complainant maintains that she had no choice, but to utilize CS-1. However, as indicated above, she could have left and returned later. She also seems to imply that the Agency should have insured that a second Claims Specialist was available at all times in the event that she came to the office. Finally, there appears to be a dispute regarding the second Claims Specialist who was present when CS-1 stamped and copied Complainant's paperwork. Complainant said that she was present the entire time. CS-1, however, said she showed up as he was finishing the transaction. Given the totality of the circumstances, we find it more likely than not that CS-1's version is more accurate. In this regard, we note that there is no dispute that CS-1 had not acted as Complainant's Claims Specialist, since May 2008; he immediately told the ICM that he could not handle Complainant's case; and he suggested that Complainant return at a later time. Thus, we find it reasonable to conclude that had he known that another Claims Specialist was available, he would have referred Complainant to that individual.
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0120102245
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102245