0120121138
10-10-2012
Sheila Douglas, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Sheila Douglas,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120121138
Agency No. 4B-060-0130-11
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated November 29, 2011, finding that it was in compliance with the terms of a September 15, 2011 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On September 15, 2011, Complainant and the Agency entered into a settlement agreement to resolve a matter which Complainant pursued through the EEO complaint process. The settlement agreement provided, in pertinent part, that:
1. At the start of the next quarter [Supervisor] and [Complainant] will meet to talk once per week for four weeks to be sure that [Complainant] is getting an equitable opportunity for overtime.1
By letter to the Agency dated October 25, 2011, Complainant alleged breach of provision 1. Specifically, Complainant alleged that her supervisor (S1) refused to meet with her once per week for four weeks as specified in the agreement.
In its November 29, 2011 final decision, the Agency found no breach. The Agency found that Complainant's supervisor (S1) stated that she attempted to meet with Complainant on two separate occasions to discuss equitable opportunities for overtime; however, on both occasions, Complainant wanted to discuss previous quarters overtime. S1 stated that she informed Complainant that discussion of previous quarters was not part of the agreement and Complainant disagreed with her. Moreover, the Agency stated that per the agreement, S1 would continue to extend Complainant an opportunity to meet with her to discuss the equitable distribution of overtime opportunities.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that S1 made false statements to the Manager, EEO Compliance and Appeals and "if the statement were properly investigated, his decision would have possible been different, unless no matter what I stated in my breach of settlement he would side with the Postal Service." Complainant further argues that since the following the signing of the agreement, S1 "still has not set up a meeting for my breach of settlement and I have no authority to set up this meeting with [S1]."
ANALYSIS AND FINDINGS
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).
The Agency complied with the terms of the settlement agreement. Provision 1 of the agreement provides for an affirmative Agency obligation to assure that at the start of the next quarter, S1 would meet with Complainant once per week for four weeks to make sure that Complainant is getting an equitable opportunity for overtime. The record contains a copy of S1's affidavit. Therein, S1 stated that on October 12, 2011, she attempted to meet with Complainant to discuss equitable opportunities for overtime. However, Complainant wanted to discuss previous quarters overtime. S1 further stated that when she told Complainant a review of "the previous quarter was not part of the agreement, she insisted that it was and refused to meet with me unless it was included. I then requested her to provide her copy of the settlement agreement so we could go over it together but [Complainant] told me it was in her car. I allowed her to go to her car to get her copy but she did not do that and did not have our meeting. [Complainant] never provided me with her copy of the agreement."
Further, S1 stated that on October 20, 2011, she approached Complainant to discuss equitable opportunities for overtime. As with the previous occasion, Complainant again indicated that the agreement required a review of the previous quarter overtime. S1 stated that she again asked Complainant "to provide her copy of the settlement agreement so we could review but she told me she left her paperwork at home. I asked her to bring it to work but to date she was not. It was at this time that she told me that she wouldn't meet with me without her EEO representative [EEO representative]. I informed her that the meetings we agreed to in the settlement agreement said nothing about having her EEO representative with her. I told her that if she wanted to meet with me it would not include her representative." S1 stated that on November 16, 2011, she attempted to talk to Complainant about overtime but Complainant "was very combative and refused to meet with me as stated in the September 15, 2011 agreement."
Complainant alleged that she and S1 were supposed to review the previous quarter overtime distribution with her EEO representative present. However, provision 1 does not specify that Complainant and S1 would review the previous quarter overtime distribution with her EEO representative present. If Complainant had wanted her and S1 to review the previous quarter overtime distribution with her EEO representative present, she should have included it as part of the subject settlement agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
The Agency's finding of no breach of provision 1 of the September 15, 2011 settlement agreement is AFFIRMED.
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
October 10, 2012
__________________
Date
1 The settlement agreement also provides for the Agency to have a named Agency official talk to a named Agency employee by September 16, 2011 about past and present incidents involving co-worker harassment, and reinforcing USPS workplace policies. This provision is not at issue in the instant appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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