0120083051
12-10-2008
Amy L. Rodehaver, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Amy L. Rodehaver,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083051
Agency No. 4C-440-0069-08
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision by the agency dated June 13, 2008, finding that it was in
compliance with the terms of the March 20, 2008 settlement agreement into
which the parties entered. See 29 C.F.R. �� 1614.402, .405, and .504(b).
The settlement agreement provided, in pertinent part, that:
(1) Management agrees that clerk work will be worked by clerks
according to overtime and craft contracts[;]
(2) Management agrees to provide e-mail access in accordance to job
responsibility[;]
(3) Management agrees to provide/enroll uniform allowance program
for counselee[; and]
(4) Management agrees to provide necessary training programs.
By correspondence to the agency dated May 8, 2008, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms. Specifically,
complainant alleged that the agency failed to issue her uniform allowance
for the current year; and it scheduled a rural carrier to perform clerk
duties on complainant's nonscheduled day of Wednesday, rather than pay
complainant overtime wages.
In its June 13, 2008 final decision, the agency concluded that it was in
compliance with the March 20 settlement agreement. The agency stated
that complainant's Postmaster (P1) ordered her four uniform shirts and
three uniform pants that should have lasted through June 2008, and, as
of May 10, 2008, a new uniform allowance was pending for complainant.
Further, the agency stated that P1 wanted to reduce unit overtime so he
used a part-time flexible clerk from a different office for that purpose.
The agency stated that, on complainant's non-scheduled Wednesdays,
it used two employees to deliver Express Mail, work on labels for the
neighborhood delivery and collection box unit, answer telephones, and
prepare travel reports for rural carriers. Further, the agency noted
that the settlement agreement did not provide guaranteed overtime for
complainant. The instant appeal from complainant followed.
On appeal, complainant stated that paragraph (1) is the only provision
that remains in contention. She stated that the agency continues to
assign clerk duties to those outside of the craft and that such is
"financially detrimental and thus discriminatory to the craft employee
that is responsible for the duties performed."
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 complainant failed to meet her
burden of proving breach. See Vega v. U.S. Postal Service, EEOC Appeal
No. 01986613 (June 30, 2000). Based on the evidence in the record,
the Commission is not persuaded that the agency breached the settlement
agreement as complainant alleged here. The record does not show that
the agency assigned duties contradictory to paragraph (1). Further,
it appears that the subsequent incidents regarding denial of overtime
may be better addressed as a separate complaint, rather than as a
breach allegation. See Bindal v. Dep't of the Air Force, EEOC Request
No. 05900225 (August 9, 1990). Therefore, complainant may raise her
claim of further discrimination as a new, separate EEO claim, if she
has not already done so.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
December 10, 2008
__________________
Date
2
0120083051
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120083051