0120073418
12-08-2009
Alma L. Gibson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Alma L. Gibson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120073418
Agency No. 4F926009804
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 19, 2007, finding that it was
in compliance with the terms of the March 24, 2004 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
Complainant will be placed in a Tour 2 CFS assignment with a
reporting time of 9:00 a.m. and non-scheduled days of Saturdays
and Sundays; complainant will start her new assignment effective
Saturday, March 27, 2004; complainant will be issued a new job
offer reflecting this assignment.
At the time of events giving rise to this complaint, complainant worked
as an Automated Mail Markup Clerk (voice), Level 4, at the agency's
Santa Ana, CA, CFS Unit. The record shows that complainant received
her new work schedule on March 27, 2004, specifying a 9:00 AM to 5:50
PM work schedule. However, on April 3, 2007, complainant was notified
that her schedule had changed to 6:00 PM to 2:50 AM. On April 19, 2007,
complainant sought pre-complainant counseling, alleging that the agency
had breached the settlement agreement when it changed her work schedule
three years after the implementation of the agreement.
In its July 19, 2007 Final Letter of Determination, the agency concluded
that it had complied with the terms of the settlement agreement.
The agency noted that the agreement did not "stipulate that the job offer
would be maintained in perpetuity." To this end, the agency maintained
that the entire "Voice Recognition Shift" was moved to a 6:00 PM start
time due to changes in "business practices and conditions." On appeal,
complainant reiterates her argument that the April 3, 2007 schedule change
constituted a breach of the settlement agreement. Complainant contends
that she is entitled to out of schedule pay because the schedule change
resulted in her working different hours from those which she agreed
to work.
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).
The Commission has held that when a specific time frame is not specified,
the agency is required to act, or refrain from acting, for a reasonable
period of time. See Garcey v. United States Postal Service, EEOC Appeal
No. 01A24396 (September 3, 2003). Parker v. Department of Defense
(Defense Logistics Agency), EEOC Request No. 05910576 (August 29,
1991) (agreement that did not specify length of service for position
to which complainant was promoted was not breached by the temporary
detail of complainant two years after the execution of the settlement
agreement). Applying these principles to the instant case, we find
that the agency's three year maintenance of the terms of the settlement
agreement was a reasonable period of time. The agreement did not specify
a time frame that complainant's work schedule would be maintained;
therefore, the agency was not bound to provide complainant a specified
schedule permanently. We find that the agency complied with the terms
of the settlement agreement. Accordingly, we AFFIRM the agency's final
determination.
CONCLUSION
After a careful review of the record, we find that the agency complied
with the settlement agreement. Therefore, we AFFIRM the agency's
determination that no breach occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
_____12/08/09_____________
Date
2
0120073418
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120073418