01A32239_r
04-15-2004
Shirley J. Reed, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shirley J. Reed v. United States Postal Service
01A32239
April 15, 2004
.
Shirley J. Reed,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32239
Agency No. 1F-933-0014-02
DECISION
Complainant filed an appeal with this Commission from a February 4, 2003
agency decision finding no breach of the November 1, 2002 settlement
agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
[1.] It is hereby agreed, with no admissions of wrongdoing by any involved
party the VMF Manager, [Person A], will determine the total overtime used
between PP 16 and PP 19 of FY 02 for the purpose of shuttling vehicles.
That total will have deducted from it, any absences of [complainant]
that resulted in a missed opportunity and any road calls made by
mechanics that involved mechanical repairs of that or other vehicles.
This total will also be reduced by the overtime worked by [complainant]
during the above time frame.
[2.] Once the above is done, a lump sum in that amount will be processed
through the Postal Data Center by [Person A] for [complainant].
[3.] . . . .
[4.] All computations will be done within sixty days from today's date.
The payment to [complainant] will be processed by the Postal Data Center.
By letter to the agency dated December 20, 2002, complainant stated that
the agency was in breach of the settlement agreement. Complainant alleged
that she was being ordered to determine the overtime that she worked,
although the settlement agreement provided that Person A was to make
the determination. In a January 3, 2003 letter also alleging breach,
complainant alleged that the agency failed to meet the 60-day period
for completing the calculations.
In its decision finding no breach of the settlement agreement, the agency
stated that Person A asked complainant to assist in doing the research
because there were eight weeks of records and documents to research.
The agency further stated that Person A also asked complainant to be
part of the information gathering on the overtime issue so that she
would herself recognize the legitimacy of the calculations. Regarding
the timeliness of the calculations, the agency stated that all the
calculations were completed by December 31, 2002, except for the �time
frame that [Person A] had assigned to [complainant.]� The agency also
noted that Person A waited until after the holidays to ask complainant
for the numbers and complainant gave them to him. The agency further
noted that Person A stated that pay claims could only be submitted
to the Postal Data Center on certain days of the pay period and that
January 7, 2003, was the first day that the claim could be processed.
The agency stated that Person A indicated that the calculations were
completed, the data submitted on the Form 2240, and complainant was paid.
Regarding complainant's allegation that Person A did not present any
figures to complainant regarding how many hours were due complainant, the
agency stated that Person A reviewed the findings with complainant and
explained how the 1.5 hours of overtime was determined, noting that the
calculations came to 1.43 hours of overtime which he rounded to 1.5 hours.
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 O 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).
In the instant case, the Commission is unable to determine whether there
was a breach of provisions 1, 2, and 4 of the settlement agreement.
There is no evidence in the record showing how Person A calculated the
overtime hours due complainant. Also, there is no evidence showing what
payment for the overtime was actually made to complainant. Therefore,
we shall remand the matter so that the agency may supplement the record
with evidence showing: (1) how Person A calculated the overtime hours
due complainant; and (2) what payment for the overtime was actually made
to complainant.
The agency's decision finding no breach of the settlement agreement is
VACATED and the matter is REMANDED to the agency.
ORDER
The agency shall supplement the record with evidence showing:
(1) how Person A calculated the overtime hours due complainant; and
(2) what payment for the overtime was actually made to complainant.
Within 30 calendar days of the date this decision becomes final,
the agency shall issue a decision regarding whether the agency has
breached provisions 1, 2, and 4 of the settlement agreement. A copy
of the agency's decision must be sent to the Compliance Officer as
referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
April 15, 2004
__________________
Date