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.