0120110415
04-12-2012
Sherry A. Vinke, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Sherry A. Vinke,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120110415
Agency No. 4J-530-0019-06
DECISION
Complainant filed an appeal with this Commission from a final decision
by the Agency dated September 20, 2010, finding that it was in compliance
with the terms of the settlement agreement into which the parties entered.
BACKGROUND
On October 31, 2006, Complainant and the Agency entered into a settlement
agreement. The settlement agreement provided, in pertinent part, that:
(4)(c) Complainant will be given a detail assignment as the
Officer-In-Charge (“OIC”) at the Afton, Wisconsin Post Office for a
minimum of four months. The detail will last as long as there is a detail
assignment available for the current Postmaster of Afton for which she
[is] eligible and willing to assume and maintain. It is the intent of
the parties to offer Complainant this developmental opportunity. While it
is recognized that this will be a learning experience, evidence of gross
misconduct or serious violations of Postal regulations may result in an
earlier end to the detail assignment and, if appropriate, disciplinary
action. Ending the detail or taking other administrative action will not
be taken lightly, as the purpose is to provide a developmental assignment
and it is understood that honest mistakes are often made in the learning
process. During the course of the OIC assignment, Complainant will be
provided with postmaster-related training and will be assigned a mentor.1
(4)(e) If and when Complainant returns to the Beloit Post Office, she
will retreat to the position of “general clerk”, with Saturday/Sunday
non-scheduled days and with hours of 8:30 AM to 5:30 PM. Because many
of the duties originally performed by the general clerk have become
obsolete, Complainant understands that she will be performing more
distribution duties than she did when she previously held this position.
Complainant may also be required to work the APC and perform other
duties consistent with the position of general clerk. The general clerk
position is subject to review and change in the same manner as all other
craft positions within the [Agency]. However, the Postal Service agrees
that significant changes to the position (schedule change, reposting,
abolishment, etc.) would only be undertaken for legitimate business
reasons and after discussions with the union regarding the reasons
proposed for such changes.
By letter to the Agency dated August 27, 2010, Complainant alleged that
the Agency was in breach of the settlement agreement. Specifically,
Complainant noted that on May 6, 2010, she received notice from Manager
A that she was going back to the Beloit Post Office and Person X, a clerk
from Janesville was going to be the new OIC in Ashton. Complainant stated
that she informed Manager A that this was in breach of the settlement
agreement. Complainant explained that after her attorney became involved,
Manager A told her on May 13, 2010, that the transfer was cancelled.
Complainant stated that on July 15, 2010, the Ashton Post Office was
transferred back to its previous Postmaster, Postmaster 1. Complainant
stated that she was returned to the Beloit Post Office on July 17, 2010.
She stated that she was not returned to a general clerk position, was not
given Saturday/Sunday non-schedule days, and was not scheduled to work the
hours of 8:30 a.m. to 5:30 p.m. Complainant stated that almost all of her
job duties as a general clerk have been designated to other employees.
Complainant noted that since her return to the Beloit Post Office her
scheduled days off have been Sunday/Tuesday and her work hours have
been 9:00 a.m. to 6:00 p.m. Complainant stated she has no job duties
and she is on standby time for eight hours a day.
In its September 20, 2010 decision, the Agency noted that Complainant
was informed on May 11, 2009, that her position of general clerk was
being abolished. The Agency also noted that Complainant was informed
in June 2010, that her OIC detail at the Afton Post Office was ending.
The Agency noted Complainant did not raise any concerns in May 2009,
or June 2010, and argued Complainant’s breach claims were untimely.
However, assuming the breach claim was timely raised, the Agency also
found it did not breach the settlement agreement. The Agency noted the
settlement agreement was honored when Complainant was detailed to the
Afton Post Office for over three years from November 20, 2006, through
July 12, 2010. The Agency noted that the reason for the temporary
vacancy in Afton was because Postmaster 1 was assigned as the OIC in
Evansville from April 7, 2010, through July 14, 2010. The Agency stated
that Postmaster 1 was replacing the Postmaster of Evansville, Postmaster
2, who was assigned as the OIC in Edgerton from April 7, 2010 through
July 12, 2010. The Agency noted that Postmaster 2 was replacing the
Postmaster of Edgerton, Postmaster 3, who was out on military leave.
The Agency stated that Postmaster 3’s military leave ended, and he
returned to his office on July 12, 2010, and as result Postmaster 2
returned to his position in Evansville, and Postmaster 1 returned to
her position as Postmaster of Afton.
The Agency noted that the settlement agreement stated that the general
clerk position is subject to review and change as are all positions and
stated that change would only be undertaken for legitimate business
reasons. The Agency noted that Complainant and the union were both
notified in May 2009, that Complainant’s position was abolished
along with the realignment of many of the Beloit clerk positions due to
reduced workload.
Additionally, the Agency stated that in the summer of 2009, Beloit lost
their Carrier Sequence Bar Code Sorter (CSBCS) machines as part of the
District plan to move all DPS sortation into the plants. The Agency
stated that as a result originally four positions were to be excessed
from the Beloit Post Office, including Complainant’s position; however,
this was later amended to three positions. The Agency stated that the
excessing process involves a few months waiting from the time the initial
notice is given until the actual placement in a new position occurs due
to contractual obligations. The Agency stated that during this time,
Complainant was put on standby time with a schedule of 9:00 a.m. to
6:00 p.m. with Sunday/Tuesday off. Moreover, the Agency stated that
Complainant was not trained when she returned because she was scheduled
to report to another position in late September 2010.
On appeal, Complainant claims that she was not on a regular OIC
detail, but rather, a detail that was part of a settlement reached on
a sexual harassment complaint. She states there is an OIC in Clinton,
Wisconsin who has been away from his duty station for at least four years.
Complainant notes that under the agreement if she returned to the Beloit
Post Office she was supposed to return to the general clerk position.
Complainant states the Agency punished her for being away from Afton by
abolishing the general clerk position before she could return to the
position. She claims she could not return to Beloit until Postmaster
1 returned to Afton. Complainant alleges that almost all of the work
previously performed under the general clerk positions is still being
done today, but it is being detailed to five other clerks.
Complainant claims that even if the work was not there, she should still
have been returned to this position with the designated days off and hours
specified in the agreement. Complainant states that when she received
the first notice that her position was being altered, she contacted the
Union President and her attorney, who she states both advised her that
she was not yet back in Beloit and thus she should disregard the notice
until she returns to Beloit.
In response to Complainant’s appeal, the Agency states that in May
2009, after review by the union, it notified Complainant that it was
abolishing the General Clerk/Distribution Clerk position that the Agency
had developed in March 2007, in accordance with provision (4)(e) as part
of the Beloit Post Office’s reduction and realignment of clerk duties
due to declining workloads. The Agency states that when it abolished the
General/Distribution Clerk position, Complainant became an unassigned
regular; however, she continued her detail as the OIC at Afton until
July 2010.
The Agency states when Complainant returned to the Beloit Post Office
on July 17, 2010, she was provided work hours and non-scheduled days
based on the needs of the office. The Agency argues that nothing in
the agreement states that Complainant’s hours or non-scheduled days
would not change. Rather, the Agency notes that the agreement states the
position was “subject to review and change” based on “legitimate
business reasons.” The Agency states that in the three and one half
years that Complainant was detailed as the Afton OIC, significant changes
impacted the Beloit Post Office and the Agency generally. Specifically,
the Agency stated the dramatic decline in mail volume and revenues and
the elimination of the CSBCS made staffing levels at the Beloit Post
Office far greater than the work available. Thus, the Agency states
it made minor adjustments to Complainant’s work hours, starting and
ending her day 30 minutes later and changed her Saturday non-scheduled
day to Tuesday, to best meet the needs of the service.
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).
At the outset, we address the Agency’s contention that Complainant’s
breach claim was untimely raised. The Agency asserts that Complainant
was informed in May 2009, that her position of general clerk was being
abolished and that she was informed in June 2010, that her OIC detail
to the Afton Post Office was ending. We find that Complainant was
not actually returned to the Beloit Post Office until July 17, 2010.
Even if the breach claim was considered timely raised, we still find no
breach of the settlement agreement.
Under the terms of the settlement agreement, the Agency agreed to detail
Complainant as the OIC at the Afton Post Office for a minimum of four
months. The agreement stated the detail will last as long as there is a
detail assignment available for the current Postmaster of Afton for which
she is eligible and willing to assume and maintain. The record confirms
Complainant was detailed as OIC of the Afton Post Office for over three
years from November 20, 2006, through July 17, 2010. When Postmaster 1
ended her detail in July 2010, and returned to the Afton Post Office,
Complainant’s detail as OIC in Afton terminated and she returned to
the Beloit Post Office. Thus, we find the Agency complied with provision
(4)(c) requiring Complainant be detailed as OIC at the Afton Post Office
for a minimum of four months. Moreover, the record reveals Complainant
remained as the OIC until Postmaster 1 returned to Afton, at which time
there was no longer an available detail assignment.
Provision (4)(e) of the agreement provided that if Complainant returns
to the Beloit Post Office, she will return to the position of “general
clerk” with Saturday/Sunday non-scheduled days off and with the working
hours of 8:30 AM to 5:30 PM. The record reveals that after execution
of the agreement, the Agency sent Complainant a March 6, 2007 letter
regarding her possible return to the Beloit Post Office. The letter
noted that the agreement obligated management to develop an eight hour
assignment which did not exist previously. The letter clarified the
expected duties Complainant would be performing upon her return to Beloit.
The letter noted that the listed duties would be performed Monday through
Friday from 8:30 a.m. until 5:30 p.m. Thus, while Complainant was not
yet returned to Beloit in May 2007, the record reveals that the Agency
designated a general clerk position for Complainant pending her possible
future return to Beloit and kept it vacant until May 2009.
We now address Complainant’s contention that the Agency breached the
agreement when it failed to return her to the general clerk position
upon her return to the Beloit Post Office. The agreement itself noted
that “many of the duties originally performed by the general clerk
have become obsolete” and stated “[t]he general clerk position
is subject to review and change in the same manner as all other craft
positions within the [Agency].” The agreement also stated that any
“significant changes to the position (schedule change, reposting,
abolishment, etc.) would only be undertaken for legitimate business
reasons and after discussions with the union regarding the reasons
proposed for such changes.”
The record reveals that in May 2009, over two years after Complainant
was detailed as OIC in Afton, the Agency abolished the General
Clerk/Distribution Clerk position that it had created and kept vacant
for Complainant’s future return and realigned the other fourteen
Beloit clerk positions due to reduced workload. Complainant and the
union were notified of this action. In a May 11, 2009 letter, the Agency
noted that the expected duties laid out in the March 6, 2007 letter were
now included within the remaining Clerk positions and thus, stated the
vacant position was abolished. The record reveals that Complainant was
classified as an unassigned regular. Complainant was notified on June
24, 2010, that since the Beloit Post Office was overstaffed, she would
be used on “stand-by time” and would be used on an “as-needed
basis” to perform some tasks, such as filling in on window services
on Saturdays and some Mondays. Complainant returned to the Beloit Post
Office on July 17, 2010, with the hours of 9:00 a.m. to 6:00 p.m. and
Sundays and Tuesdays as her non-scheduled days.
The Commission has held that there is no breach of a settlement agreement
“where an individual has been assigned to a position pursuant to a
settlement agreement, has held the position for a period of time, and then
is excised out of the position because of agency downsizing that was not
anticipated at the time of the agreement.” Gish v. Dep’t of the Army,
EEOC Appeal No. 01950923 (August 14, 1995), request for reconsideration
granted in part and denied in part, EEOC Request No. 05950918 (August
14, 1995) (granted on part different than the cited quotation). In the
present case, circumstances intervened which were unforeseeable and
which resulted in the abolishment of Complainant’s position. As such,
the Commission does not find that the Agency's actions, taken several
years after the agreement, were in breach of the settlement agreement.
Moreover, with regard to Complainant’s contention that the Agency
was required to assign her to a work schedule with Saturday/Sunday
non-scheduled days off and with the hours of 8:30 a.m. to 5:30 p.m., we
note that the agreement specified only that Complainant would retain these
work hours and non-scheduled days off if she returned to the position
of general clerk. As Complainant did not return to the general craft
position, as discussed above, we find the Agency was not required to
assign her to Saturday/Sunday non-scheduled days or to the work hours
of 8:30 a.m. to 5:30 p.m.
CONCLUSION
Accordingly, the Agency’s final decision 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
April 12, 2012
__________________
Date
1There is no section 4(d) in the settlement agreement.
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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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