0120101809
04-07-2011
Beverly A. Davis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Beverly A. Davis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120101809
Agency No. 4F-900-0391-09
DECISION
Complainant filed a timely appeal with this Commission from a letter of determination by the Agency dated February 25, 2010, finding that it was in compliance with the terms of an October 22, 2009 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The October 22, 2009 settlement agreement provided, in pertinent part, that:
. . . management and the Complainant agree that management will review Complainant's TACS report from May 29, 2009 (when the air conditioning ceased working) through August 22, 2009. The review will be conducted to determine what period of FMLA time was used by Complainant. The issue will center on the Complainant substantiation of FMLA leave utilized as a result of the aggravation of her pre-existing disability and will not be including her actual vacation leave taken. Management will review Complainant's medical substantiation for the period she claims her diabetes was affected by the heat in the office.
Management agrees that Complainant sustained some form of financial hardship as a result of not being paid in a timely manner. Management agrees to review Complainant's NSF documentation and hourly pay accumulation to determine the damages in question. Complainant agrees to provide her bank statements, NSF statements, for the period of time in question when she alleges she experienced financial hardship.
Management agrees to investigate both issues within a reasonable time and to be in communication during this period to discuss the results.
By PS Form 2564-A "Information for Pre-Complaint Counseling" to the Agency dated December 30, 2009, Complainant alleged that the Agency was in breach of the settlement agreement. Complainant merely stated that the Agency failed to comply with the terms of the agreement.
In its February 25, 2010 letter of determination, the Agency found no breach. The Agency determined that the Manager, Customer Services (MCS) who signed the agreement, stated that there was no breach. The Agency noted that MCS stated that Complainant was supposed to provide management with proper documentation to validate her claim, but that to date he had received no such documentation.
The record contains an affidavit from MCS, dated July 30, 2010. Therein, MCS stated that management printed out all dates "referenced by the above Complainant from the complaint form 3972 attendance analysis form that management was mandated to do which was part of the redress agreement. Management informed the Complainant the need for the Complainant to submit medical documentation as agreed to at the redress meeting. Management never received any medical documentation to validate the Complainant's claim and could not move forward with any progress." MCS further stated that management never received Complainant's NSF bank statements to determine the extent of the financial hardship she alleged.
With respect to Complainant's allegation that she left an envelope with copies of the requested documentation, MCS stated "I never received that information and could not move forward without the very important information requested."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that MCS's claim that he never received any documentation from her was a lie. Complainant further states "all information to support my claim was placed in a Large Postal Envelope, Brown paper taped and round dated on the back of the envelope with the date of November 16, 2009. This envelope was personally placed on [MCS's] desk the same day." Complainant states that after she received the Agency's February 25, 2010 letter of determination finding no breach, she contacted MCS and "asked why he lied about not receiving the information. He responded with, "I don't know why I did that and I am sorry [emphasis in its original]." Complainant stated that MCS then suggested her to give him the copies on March 1, 2010 but he was not in the office. Complainant stated that she made several attempts to stop by his office to give him the copies without any success. Complainant stated that March 17, 2010, she contacted the Manager, Human Resources' secretary "trying to avoid this procedure explaining all mention above and was told she would have [Manager, Human Resources] call me. Never receive a call."
Further, Complainant stated that on March 19, 2010, she received a phone call from MCS's secretary requesting an updated medical document for a work injury and whether she had access to the Ebuy2 program but "there was NO mention of a meeting with me on this mediation settlement that was mentioned [emphasis in its original]." Finally, Complainant requests that the instant case be combined with a separate EEO complaint.
ANALYSIS AND FINDINGS
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 the instant case, we find that the Agency properly found no breach. Specifically, we note that a review of the agreement states that management agreed to review the following documentation: Complainant's TACS report from May 29, 2009 through August 22, 2009 to determine what period of FMLA time was used; Complainant's medical documentation for the period she claimed her diabetes was affected by the heat in the office; and review Complainant's NSF documentation and hourly pay accumulation to determine the damages in question. We also note that Complainant agreed to provide management her medical documentation, bank statements and NSF statements for the period of time in question when she experienced financial hardship.
We note in his affidavit, MCS stated that management reviewed Complainant's TACS report pursuant to the terms of the agreement. MCS stated, however, that management was unable to comply with the remainder of the agreement. Specifically, MCS stated that management did not review Complainant's medical documentation and NSF bank statements because Complainant did not provide them, despite being reminded to do so.
We note that on appeal, Complainant vehemently asserts that the documentation referenced in the subject settlement agreement was transmitted to MCS. It appears from the record that the Agency still stands ready to implement the terms of the settlement agreement upon receipt of such documentation. Complainant is therefore advised to make a separate attempt to provide this documentation to MCS.
Accordingly, the Agency's finding of no breach of the October 22, 2009 settlement agreement is AFFIRMED.
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), at 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 (S0610)
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 (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
April 7, 2011
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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