Wanda Kusy-Carpenter, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 15, 2004
01A32513_r (E.E.O.C. Apr. 15, 2004)

01A32513_r

04-15-2004

Wanda Kusy-Carpenter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Wanda Kusy-Carpenter v. United States Postal Service

01A32513

April 15, 2004

.

Wanda Kusy-Carpenter,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A32513

DECISION

Complainant filed a timely appeal with this Commission from an agency

final decision dated February 18, 2003, in which the agency determined

that it fulfilled its obligations as set forth in a November 13, 2002

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 November 13 ,2002 settlement agreement provided, in pertinent

part, that:

(1) [Named agency official] (herein referred to as �AO�) agrees to replace

[complainant's] 30 minutes of sick leave with 30 minutes of administrative

leave for time used on 9-25-02. AO will make this arrangement no later

than 2 weeks from today (filing).

(2) A new policy for revising schedules will be shared by [another

named agency official] and AO in a meeting on 11-14-02. Included in

the policy will be the points that no USPS carriers will be allowed to

revise his/her schedule to begin work before 7 a.m., and that all will

be held to the same standard for revised schedules.

(3) [Complainant] will be allowed to revise her schedule to 7 a.m. for

medical appointments when she is unable to make an appointment late in

the [day] that wouldn't warrant a revision.

(4) There will be no retribution by AO for today's time used by

[complainant]. ...

By letter to the agency dated December 2, 2002, complainant alleged

settlement breach and requested that the agency reinstate the underlying

complaint. Specifically, complainant claimed that the agency granted

a schedule revision for more than 30 minutes (apparently in reference

to provision 2),<1> and that her 30 minutes of sick leave had not

been converted to administrative leave (apparently in reference to

provision 1). Complainant also claimed that the agency subjected her

to retribution, which was not further described.

In its February 18, 2003 final decision, the agency indicated that it

conducted an inquiry into complainant's breach claim, and determined that

it had complied with the settlement agreement. Regarding provision 1,

the agency found that the paperwork for conversion of the 30 minutes of

sick leave to annual leave had been completed. Regarding provision 2,

the agency determined that AO indicated that the agency only agreed

not to grant a revised schedule before 7 a.m., but that there was no

agreement that management would not schedule any employee in before 7 a.m.

On appeal, regarding provision 1, complainant acknowledges that the sick

leave conversion was completed, but asserts that the agency unduly delayed

this action by taking 16 weeks to complete it. Regarding provision

2, complainant argues that the agency granted a revised schedule to a

co-worker, to start work at 6:45 a.m. Complainant explains that the

latter occurred after the announcement of the new policy not to grant

a revised schedule request to start earlier than 7 a.m. In support of

this argument, complainant submits a copy of the co-worker's approved

schedule. Additionally, complainant contends that the agency retaliated

against her when management conducted a route count on her in December,

in violation of personnel policy. Complainant submits a copy of agency

regulations to support her claim in this regard.

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, we find that provision 1 requires the agency to

complete and submit paperwork for complainant's sick leave conversion

within two weeks of the date of the settlement agreement. Review of the

record indicates that the initial request was completed on November 18,

2002, although it is not clear what occurred thereafter to delay the

conversion by 16 weeks. However, to the extent that the agency may be

deemed to have breached the provision 1 by this delay, we find that it

cured this breach when it ultimately made the conversion from sick leave

to administrative leave. Accordingly, we find no breach of provision 1.

In reviewing provision 2, we find that it obligates agency management at

complainant's facility to adopt a new policy concerning revised schedules,

wherein it will not revise any carrier's schedule earlier than 7 a.m.

The agency announced this new policy to employees during a meeting as

mandated by provision 2. However, shortly thereafter, on November 20,

2002, it granted a revised schedule request to complainant's co-worker,

allowing her to begin work at 6:45 a.m., on November 21, 2002, for the

purpose of attending a credit union meeting. Complainant argues that

this is a clear violation of provision 2, while the agency defends its

action by arguing that provision 2 does not obligate it to refrain from

scheduling an employee earlier than 7:00 a.m.

After careful review, we find that provision 2 requires agency management

not to grant revised schedule requests made by letter carriers at

complainant's facility to start any earlier than 7 a.m. We determine

that the language of provision 2 is clear and unambiguous in obligating

the agency to refrain from allowing a letter carrier to have a revised

schedule starting earlier than 7 a.m. Because record evidence confirms

that the agency granted complainant's co-worker a revised schedule to

commence at 6:45 a.m., shortly after the announcement of the new policy

not to allow revised schedules to be earlier than 7:00 a.m., we find

that the agency breached provision 2.

In her breach claim, complainant requests reinstatement of her complaint

as a remedy for the breach. However, given that the agency has otherwise

substantially complied with the remaining provisions of the settlement

agreement, we find that specific performance is the more appropriate

remedy in this case.

Accordingly, we REVERSE the agency's finding of no breach regarding

provision 2, and we REMAND this case with an ORDER to the agency to

henceforth refrain from allowing revised schedules of letter carriers

to commence any earlier than 7:00 a.m., as set forth more fully below.

Finally, regarding complainant's claim of retaliation concerning the

December route count, we find that this must be treated as a separate

complaint. See 29 C.F.R. � 1614.504(c). Should complainant wish to

pursue this matter in the EEO process, if she has not already done so,

we advise her to contact an EEO Counselor.

In conclusion, we AFFIRM the agency's determination that it substantially

complied with provision 1, but we REVERSE its determination that it

complied with provision 2, and we REMAND the case to the agency to carry

out specific performance of provision 2, as set forth in the ORDER below.

ORDER

The agency is ORDERED to take the following action:

1. Agency management officials at complainant's facility (Memorial Park

Station, Houston, Texas) shall refrain from granting revised schedule

requests from letter carriers to commence any earlier than 7:00 a.m.

2. Within twenty (20) calendar days of the date that this decision

becomes final, the agency shall provide written notice to all letter

carriers at the Memorial Park Station facility that a revised schedule

cannot commence earlier than 7:00 a.m.

A copy of the agency's notice under #2, and all other pertinent

documentation relating to its compliance with this ORDER, must be sent

to the Compliance Officer as referenced below.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

April 15, 2004

__________________

Date

1Review of the record indicates that management

at complainant's facility allows employees to request that their usual

schedule be adjusted to work earlier on a particular day so as to minimize

or eliminate the need to use leave to attend personal appointments,

which here is referred to as a �revised� schedule.