01A23187_r
09-10-2002
Sharon D. Barton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon D. Barton v. U.S. Postal Service
01A23187
.September 10, 2002
Sharon D. Barton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23187
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision dated April 17, 2002, finding that it complied with a July
13, 2001 settlement agreement. The Commission accepts the appeal. 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:
... [Complainant] would be compensated at the overtime rate [for] any
overtime hours that [she] missed due to Zone 4 being taken from [her]
bid as it relates to Begin Tour overtime.
By letter to the agency dated November 5, 2001, complainant claimed
that the agency breached the above referenced provision when it failed
to compensate her for a total of 11.59 hours of �missed� overtime,
including 2.00 hours of penalty time, as follows:
March 27, 2001: 3.90 hours of overtime
April 30, 2001: 2.00 hours of penalty time
May 1, 2001: 3.69 hours of overtime
July 2, 2001: 2.00 hours of overtime
By e-mail correspondence dated December 21, 2001, an management official
responded to this breach claim, indicating that based on the schedule
of the comparative worker who worked Zone 4 assignments during the
pertinent period, complainant missed only 2.00 hours of overtime,
and that she was compensated for this amount. The management official
averred that the use of the comparative for this purpose was agreed to
during the mediation, and that the comparative worked overtime on only
one day that complainant did not, and that she was compensated for these
2.00 hours. The management official indicated that the amount requested
by complainant not only contemplates that complainant would have worked
a changed schedule during this time, but also includes amounts that
would �restore� annual leave taken on certain of these days, and would
improperly compensate complainant for �penalty� overtime.
In another e-mail communication, dated March 18, 2002, the plant manager
(Manager), who was the agency's signatory to the settlement agreement,
also stated that the use of a certain comparative employee to calculate
complainant's hours missed was agreed to at the mediation. The Manager
found that based on the comparative's schedule, complainant lost only
two hours of overtime assignments by not having Zone 4 assignments.
Specifically, the Manager indicated that on March 27, 2001, complainant
used annual leave to attend school, and that she arrived late to work,
working only 1.75 hours of the overtime she was scheduled for that day,
and that the comparative did not work any overtime hours that day.
As to April 30, 2001, the official stated that both complainant and
the comparative were scheduled to work 4 hours of overtime, but that
complainant did not work this full amount because she reported late
to work. Regarding May 1, 2001, the Manager again noted that both
complainant and the comparative were scheduled for overtime, but that
complainant lost .55 hours of this time due to being late.
In its April 17, 2002 decision, the agency set forth a matrix comparing
the relevant scheduling of complainant and the comparative for the dates
at issue. Based on the matrix, and record evidence, as described above,
the agency concluded that it complied with the settlement agreement by
paying complainant for 2.00 hours of overtime from July 2, 2001.
On appeal, in pertinent part, complainant avers that the agency's payment
of the 2.00 hours of overtime was unreasonably delayed by four months,
and that she still has not been compensated for the days and times
referenced in her breach claim.
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 Commission determines that the settlement agreement is not �plain
and unambiguous on its face,� because it fails to set forth a method to
calculate complainant's �missed� overtime hours from Zone 4, to include
the use of a comparative employee. However, by looking to extrinsic
evidence to ascertain the intent of the parties, we find that each of
the two management officials who were present during the negotiation
of the settlement agreement provided consistent statements indicating
that not only did the parties agree to use a comparative employee
to calculate these hours, but they actually identified this employee
by name. Furthermore, the record reflects that the agency, in fact,
used this exact method to arrive at the 2.00 hours of overtime it paid
to complainant for July 2, 2001. In both her breach claim, as well as on
appeal, we note that complainant does not dispute the agency's statements
regarding the extrinsic agreement to use a comparative employee to
calculate her missed overtime, nor does she provide any explanation
regarding her entitlement to the hours she claims.
Therefore, given the high reliability of the extrinsic evidence in this
case, as well as the logic of this method for calculating complainant's
�missed� overtime hours, we find that the agency properly and reasonably
used a comparative employee to make this calculation. Additionally, we
find that the agency properly determined that complainant was entitled
to 2.00 hours of overtime, as compared to the relevant overtime worked by
the comparative employee, and that complainant was paid for this amount
in November 2001. Moreover, we do not find that a 4-month delay is so
unreasonable as to constitute a breach of the settlement agreement.
In conclusion, for the reasons set forth above, we AFFIRM the agency's
decision finding no breach of the subject settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (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
September 10, 2002
__________________
Date