0120113869
12-05-2012
Amy N. Ho, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Amy N. Ho,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120113869
Agency No. 1E-971-0053-09
DECISION
On May 19, 2011, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) shortly after filing a notice of breach with the Agency on a settlement agreement the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Mount Hood DDC facility in Portland, Oregon.
Believing that the Agency subjected her to unlawful discrimination, Complainant initiated the EEO complaint process. On January 31, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
10. ....
b. The Agency shall restore to the Complainant forty (40) hours of sick leave.
c. The Agency shall change the Complainant's effective hire date to March 31, 2007 and revise her personnel records to reflect no break in service. As a result, Complainant will be entitled to the benefits of employment (increased vacation accrual rates, retirement benefits, step increase eligibility, etc.) as if she was hired March 31, 2007, experienced no break in service, and was in Leave Without Pay (LWOP) status for the time period currently reflected as showing a break in service between March 31, 2007 and her re-hire date of September 1, 2007. For the time period(s) currently reflected in the Complainant's personnel records as showing a break in service that would be affected by changing the Complainant's hire date, the Complainant shall be placed into a Leave Without Pay (LWOP) status. The parties recognize that such placement in an LWOP status may affect the benefits of employment the Complainant is entitled to as a result of changing her hire date to March 31, 2007, except that the placement in the LWOP status shall not affect the payment called for under paragraph 10(d) of this agreement.
d. The Complainant shall have her entitlement to step increases be computed as if she was hired on March 31, 2007 with no break in service. The Agency shall pay the Complainant back pay equal to the additional amount of money the Complainant would have earned had her hire date, for step increase purposes only, been March 31, 2007. The payment will be calculated as if any and all step increases for which Complainant was eligible (as a result of changes to her personnel records effected by Paragraph 10(c) of this agreement) between March 31, 2007 and present was awarded pursuant to the relevant collective bargaining agreement. The only effect of this sub-paragraph is to make the Complainant eligible for historic and forthcoming step increases sooner and to pay the increase in pay associated with the historic change in the step increase date(s).
By letter to the Agency dated May 5, 2011, Complainant alleged that it breached the settlement agreement, and requested that its terms be implemented. Referring to a Notification of Personnel Action, PS Form 50, item 18 (Service Anniversary PPYR), which reflected a pay period and year of "19 2007" rather than "08 2007", Complainant alleged that the Agency failed to update all her personnel records to reflect an effective hiring date of March 31, 2007. She alleged this delayed the Agency matching her Thrift Savings Plan (TSP) contributions from December 2007 to June 25, 2008. She contended that thereafter, the Agency matching TSP contribution stopped and started. Complainant continued that she converted from a part-time flexible employee to a full-time regular employee on January 5, 2008, but under the settlement agreement this should have occurred on August 18, 2007. She explained that two co-workers with the same hiring date as her (March 31, 2007) were converted on August 18, 2007. Complainant wrote that as a result of not being timely converted, she did not get paid on six holidays from August 18, 2007 through January 5, 2008. She also contended that the Agency did not restore 40 hours of sick leave as agreed in the settlement agreement, and there was some type of adjustment made on March 4, 2011, but she did not get an explanation on it.
Shortly after filing her notice of breach dated May 5, 2011, on May 19, 2011, Complainant filed an appeal with the EEOC, reiterating her notice of breach claims. On September 16, 2011, the Agency issued a FAD, with supporting documentation, finding that it complied with the settlement agreement. The documentation showed that the Agency adjusted item 18 (Service Anniversary PPYR) on Complainant's PS-50 to reflect a pay period and year of "08 2007." It did this on March 12, 2011. The documentation also purportedly showed that the Agency started matching Complainant's TSP contribution in pay period 26 of year 2007. It showed the Agency restored the 40 hours of sick leave, as agreed. The Agency submitted payroll journals on Complainant showing various adjustments.
On the delay in being converted to a full-time regular employee, the Agency found that there was no stipulation in the settlement agreement about being converted on August 18, 2007. The Agency also made findings on the meaning of the settlement phrase "changing her personnel records" to support its finding that the settlement agreement was not intended to impact the timing of Complainant's conversion to full-time regular status. These findings were based on an affidavit on the meaning of the above phrase and what was discussed during settlement negotiations on this by the Agency attorney involved in the settlement negotiations.
The Agency concluded that it complied with the settlement agreement.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 response to the FAD, Complainant no longer argues that the Agency was deficient in matching her TSP contributions and failed to restore her 40 hours of sick leave or that she does not understand an adjustment the Agency made March 4, 2011. Given this, together with the documentation the Agency submitted on these matters, we find Complainant has not shown that the Agency breached the settlement agreement regarding the above matters.
In response to the FAD, Complainant maintains that implementation of the settlement agreement would result in her conversion to a full-time regular employee on August 18, 2007. She cites Article 12.2.E of the collective bargaining agreement (CBA), which provides "part-time flexible employees are placed on a part-time flexible roster in the order of the date of their appointment. When changing such employees to full time, they shall be taken in the order of their standing on the part-time flexible roster." Complainant argues that being on LWOP did not impact her seniority rights. Complainant contends that she talked to a union steward around October 1, 2011, who indicated that if there were three full-time regular openings on August 18, 2007, then she would have the right to convert that date (two for her comparative co-workers, one for her), and if there were only two openings she would have converted on November 11, 2007, the same date as three junior employees. Complainant argued had she converted earlier, she would have received additional holiday pay. The record does not show she copied this response to the Agency so it could reply.
We find that term 10(c) of the settlement agreement is plain and unambiguous on its face. Accordingly, we will not resort to extrinsic evidence (the statement by the Agency attorney) to interpret the meaning of the phrase "her personnel records" in the settlement agreement. The language in term 10(c) provides that the Agency will revise Complainant's personnel records to reflect no break in service, and as a result she would be entitled to the benefits of employment (increased vacation accrual rates, retirement benefits, step increase eligibility, etc.) as if she was hired on March 31, 2007, experienced no break in service, and was in LWOP from March 31, 2007 to September 1, 2007.
If part-time flexible employees are converted to full-time regular employees as a matter of course based on seniority, so long as certain contingencies are met (such as open full-time regular positions, etc.) and Complainant met these contingencies, then she would be entitled to be converted based on a hire date of March 31, 2007, if she met the contingencies. If being on LWOP from March 31, 2007 to September 1, 2007, would delay being converted to full-time regular status, this can be taken into account.
The FAD is AFFIRMED in part and VACATED in part. The Agency shall comply with the order below.
ORDER
The Agency shall take the following actions:
1. Conduct a supplemental investigation to determine what date, if Complainant was hired on March 31, 2007, with no break in service and on LWOP from March 31, 2007 to September 1, 2007, she would have been converted to a full-time regular employee. The supplemental investigation shall include information on whether Complainant met or did not meet any required contingencies for the conversion date. The supplemental investigation shall include documentation and statements from people in a position to know, such as relevant Agency human resources professionals.
2. The Agency shall provide a copy of the above information to Complainant, and give her the opportunity to add documentation and statements by herself and others to the supplemental investigation.
3. If the Agency determines that Complainant was entitled to be converted to a full-time regular employee effective August 18, 2007, as contended by Complainant, then it shall convert her retroactive to that date, with any applicable back pay with interest, including paid holidays, in accordance with 29 C.F.R. � 1614.501.
4. If the Agency determines that Complainant was entitled to be converted to a full-time regular employee on any date after August 18, 2007, it shall issue a new FAD, appealable to the EEOC, explaining the reason therefore. If the date is prior to January 5, 2008, the Agency shall give Complainant the benefit of this, i.e., retroactive conversion with back pay and interest, including paid holidays, in accordance with 29 C.F.R. � 1614.501.
The Agency shall complete the above actions within 90 calendar days after this decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. The Agency shall send a copy of the report to Complainant.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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 (T0610)
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 (Z0610)
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 5, 2012
__________________
Date
1 The appeal was prematurely filed. While the appeal was pending the Agency issued a final Agency determination (FAD), appealable to the EEOC, finding that it complied with the settlement agreement. This perfected the appeal. Further, on October 14, 2011, Complainant filed a second notice of appeal form from the Agency's September 16, 2011, FAD, which was timely, further perfecting the appeal. The appeal is accepted.
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0120113869
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113869