Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 26, 2014
0120123235 (E.E.O.C. Aug. 26, 2014)

0120123235

08-26-2014

Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120123235

Agency No. 4B-006-007-12

DECISION

Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated July 5, 2012, finding that it was in compliance with the terms of the 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency's Isabela facility in Isabela, Puerto Rico.

On February 2, 2012, Complainant and the Agency entered into a settlement agreement to resolve the above-referenced EEO matter. The settlement agreement provided, in pertinent part, that:

(1) [Complainant's] schedule will be the BT of 6:45 AM; OL: 11:45 AM; IL 12:45 AM with ET: 15:45 PM. SDO: Sundays and Wednesday effective 02/11/12. She will remain in this schedule until she bids another assignment.

(2) [Complainant] will request time off for personal retreats with at least 20 days of advanced notice and will be approved reasonably according to the needs of service.

(3) A labor management meeting will be requested and held within the 30 work days. Both parties will agenda items to be discussed during the meeting.

(4) Establish a sound and healthy communication process within the work environment - With emphasis on RESPECT MUTUALLY.

(5) Avoid using verbal confrontation and verbal abuse on the floor and while assisting clients, on both sides watch tone of voice.

(6) [Complainant's supervisor] will provide [Complainant] copy of e-mail where he is requesting "status on CA-2 Report."

By letter to the Agency dated April 15, 2012, Complainant alleged that the Agency was in breach of the settlement agreement, and she requested that the Agency reinstate her complaint 4B-006-0007-12. The Agency requested that Complainant provide the Agency with specific information regarding the nature of her breach claim. In response, Complainant advised the Agency that she believed that management failed to provide an official letter changing her schedule and wrongfully changed her schedule from the schedule negotiated during the mediation. Regarding provisions 2 to 6, Complainant maintained that the Agency violated the Agreement when it denied her requests for schedule changes and leave and when it subjected her to rude behavior and a disciplinary action.

Provision 1 Schedule Changed

Although no written confirmation was provided until March 21, 2012, the record reflects that Complainant's schedule was changed effective February 11, 2012. In addition, the record shows that Complainant's schedule was temporarily changed on March 20, 2012, but then changed back by the Agency on March 21, 2012. The Agency maintains that Complainant continues to work the schedule delineated in the February 2, 2012 settlement agreement.

Provision 2 Requests for Time Off for Personal Retreats

The Agency maintains that Complainant did not provide the requisite notice and the Agency denied the rest of Complainant's requests based on the Agency's operational needs. This provision is the subject of another Agency complaint. Complainant has not offered any evidence to show that the Agency's stated reasons are untrue.

Provision 3 Labor Management Meeting

The Agency states that her supervisor requested a meeting on February 7, 2012, but the meeting did not take place until March 20, 2012. Complainant maintains that her February 18, 2012 request for a meeting received no response. The record shows that a meeting took place on March 20, 2012.

Provision 4 Sound and Healthy Communication Process and Respect

Complainant asserts that there was a violation of provision 4 (which required a sound and healthy communication process). Complainant maintains that her supervisor was disrespectful. She also alleged that he charged Complainant with failure to follow instructions. Complainant's supervisor maintains that Complainant was disrespectful to him.

Provision 5 Avoidance of Verbal Confrontations and Abuse

With regard to provision 5, Complainant noted an incident on March 24, 2014 in which she said that her supervisor was disrespectful. Complainant provided a letter of commendation from a Postal customer praising Complainant, but the customer stated that he witnessed rude behavior from a management official. The Agency questioned the validity of the letter.

Provision 6 Copy of e-mail for status of CA-2 Report Requests

With regard to provision 6, Complainant offered no submission showing that the supervisor failed to provide adequate notification when he was requesting the status of any CA-2 Report. Complainant did not address how the Agency violated Section 6. This provision pertained to her appeal of a resolved workers' compensation claim.

Breach Decision

The Agency concluded that it did not violate the first three provisions of the settlement agreement's provisions, which it reasoned were the only provisions that were valid and to be binding.

With regard to provisions 1 to 3, the Agency reasoned that Complainant's schedule was changed effective February 11, 2012. The Agency acknowledged that her schedule had been temporarily changed because the Agency thought that Complainant was seeking a bid change. After further review, management advised Complainant that it would abide by the schedule the parties negotiated. With regard to her leave requests, the Agency found that it complied with the agreement. The Agency reasoned that it was not a violation to deny Complainant's requests because Complainant did not provide the Agency with the requisite 20 days advance notice. Complainant does not dispute that she did not provide the advance notice. Next, the Agency found that a Labor Management meeting took place on March 20, 2012. It found that it was in compliance with the Agreement.

The Agency then found that provisions 4, 5 and 6 were "null and void" for lack of consideration in that they are vague and afforded Complainant nothing more than that to which she was already entitled to receive, as an employee.

This appeal followed.1

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). We find that the Agreement is valid and binding on both parties.

In the instant case, Complainant brought her breach claims to the Agency's attention on April 15, 2012. By that time, the Agency had already made adjustments as indicated above. She also challenged the Agency's failure to respond to her requests for a meeting. The record shows that a labor management meeting was held. All the settlement agreement required is that a labor management meeting will be requested and held within 30 work days. The record reflects multiple requests, including management's February 7, 2012 request and Complainant's February18, 2012 request. There was also a March 23, 2012 request from Complainant's representative, but there is a dispute as to whether he was seeking that meeting in his capacity as the union representative. It is undisputed that a labor management meeting was held on March 20, 2012. Complainant argues that the meeting did not meet her expectations.

The Commission has held that, pursuant to 29 C.F.R. � 1614.504(b), an agency has 35 days from the receipt of a complainant's allegation of noncompliance to resolve the matter, or cure any breach that occurred. The Commission has further held that if an agency cures a breach during the 35 day period after the filing of a breach claim, it will be deemed to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009). The record shows that the Agency made adjustments before Complainant filed her breach claim.

We find that to the extent that the Agency's initial modification of her schedule and untimely response to her meeting request constituted breach, the Agency's action of restoring the agreed upon schedule and holding the requested labor management meeting cured any such breach. From the record, it appears that the change in her schedule was due to an inadvertent error or miscommunication.

To the extent that Complainant has raised new allegations of retaliation and rude conduct in this appeal, we note that Complainant has already raised these subsequent actions in a separate complaint which the Agency accepted for investigation under Agency Number 4B-006-0032-12. Since Complainant has not proven to the contrary, we find that the Agency complied with the agreement.

CONCLUSION

Accordingly, we AFFIRM the Agency's final decision finding no breach.

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 tends 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

August 26, 2014

__________________

Date

1 We note that in this appeal (EEOC Appeal 0120123235), Complainant references Agency Number 4B-006-0032-12. The Agency's July 5, 2012 Breach Decision pertained to Agency Complaint 4B-006-0007-12. The record includes information on Complainant's new complaint and includes a Letter of Acceptance for 4B-006-0032-12. Because this is not a FAD, we decline to address this second action at this time. Complainant may appeal after the Agency issues a FAD.

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0120123235

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120123235