Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 26, 2013

0120112768 (E.E.O.C. Mar. 26, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120112768

Agency No. 4C-150-0041-06

DECISION

Complainant filed an appeal with this Commission from a final decision by the Agency dated
March 25, 2011, finding that it was in compliance with the terms of the settlement agreement
into which the parties entered. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

On December 26, 2006, Complainant and the Agency entered into a settlement agreement
which provided, in pertinent part, that:

3. In consideration of the mutual acts, covenants and promises herein, the Parties
agree as follows:

a. effective January 1, 2007, the [Agency] will reassign Complainant to her
former rural delivery route (known as Rural Delivery Route 001) at the
New Brighton, Pennsylvania Post Office, with a 6 day a week schedule
and a standard start time of 0800;

b. The [Agency] will pay Complainant’s representative, [Person A],
Esquire the sum of One Thousand, One Hundred Dollars ($1,100.00), as
compensation for all reasonable attorney’s fees and costs rendered to
Complainant in this EEOC matter. Complainant’s attorney will provide
a tax identification number for the same within ten (10) days of the
signing of this Agreement.
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By letter to the Agency dated February 15, 2011, Complainant alleged that the Agency was in
breach of the settlement agreement. Specifically, Complainant alleged that the Agency
changed the Rural Route 1 start time on January 20, 2011, and February 4, 2011.
Complainant attached a letter she received from the Officer-In-Charge (OIC) stating that
effective January 22, 2011, her starting time will change from 8:00 a.m. to 10:00 a.m.
Complainant also supplied a letter she received from the OIC stating that effective February 7,
2011, her starting time will change from 8:00 a.m. to 9:00 a.m. Complainant requested the
agreement be specifically implemented, or alternatively that the complaint be reinstated for
further processing from the point processing ceased.

In its March 25, 2011 decision, the Agency noted that the OIC assumed management of the
New Brighton Post Office in August 2010. The Agency stated that management, including the
204Bs, were using their privately-owned vehicles to help drive the carriers to deliver relays
and parcels. The Agency noted that operational changes were needed at the facility and as a
result, the starting time for the Regular Rural Carrier on R002 was changed from 7:00 a.m. to
7:30 a.m. The Agency noted the starting time of the city carriers was changed from 7:30 a.m.
to 7:45 a.m. Additionally, the Agency noted Complainant’s starting time, as a Rural Carrier
Associate, was changed from 8:00 a.m. to 9:00 a.m. The Agency explained the office has two
foot routes that needed their relays delivered and the only vehicle available is the LLV (Life
Long Vehicle) on R001. The Agency found no evidence that a breach of the settlement
agreement occurred.

On appeal, Complainant notes that in its final decision the Agency stated that Complainant’s
Route 1 assigned LLV is the “only vehicle available” for utilization on City Carrier routes and
that the operational change in starting times would benefit management from using their
privately-owned vehicles. Complainant refutes the Agency’s claim that the Route 1 start time
change is operationally beneficial to the office.

In addition, Complainant contends that the settlement agreement itself is void for lack of
consideration. Complainant notes that on January 18, 2007, fifteen days after signing the
December 26, 2006 settlement agreement, she was scheduled to work on another route, Route
2. Complainant argues that the Collective Bargaining Agreement (CBA) in place at the time
stated that if an employee elects to serve the auxiliary route six days per week, the employee
will not serve on any other auxiliary route or as a leave replacement on any regular route.
Complainant states that she elected to serve as the Route 1 Auxiliary Route six days per week.
She states that 15 days after the settlement agreement was executed, she was scheduled to work
another route, and she states that the settlement agreement itself was unenforceable.

In response to Complainant’s appeal, the Agency notes that the settlement agreement contained
consideration as it involved Complainant’s reassignment to her former route with a six-day
schedule and an 8:00 a.m. start time, along with the payment of attorney’s fees. In addition,
the Agency notes that Complainant worked the hours specified in the agreement for a four-year
period before work place changes necessitated what became a one-hour change in starting time.
0120112768

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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).

At the outset, we reject Complainant’s contention that the settlement agreement is void for lack
of consideration. Specifically, we note that in exchange for the withdrawal of her complaint,
the agreement provided that Complainant would be reassigned to her former rural delivery
route (known as Rural Delivery Route 001) at the New Brighton, Pennsylvania Post Office,
with a 6-day a week schedule, and a standard start time of 0800. In addition, the agreement
provided Complainant payment of attorney’s fees in the amount of $1,100. Thus, we find the
settlement agreement contained adequate consideration.

We find Complainant failed to show that the Agency breached the December 26, 2006
settlement agreement. The Agency noted that Complainant enjoyed the 0800 start time
specified in the agreement for four years until work place changes necessitated the change in
her start time. Complainant does not dispute the Agency’s contention that she maintained the
0800 start time specified in the agreement for a four-year period.

The Commission has held that where an individual bargains for a position without any specific
terms as to the length of service, it would be improper to interpret the reasonable intentions of
the parties to include employment in that exact position ad infinitum. See Holley v. Dep’t of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Papac v. Dep’t of
Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991); see also Parker v.
Dep’t of Defense, EEOC Request No. 05910576 (August 30, 1991). In the present case, the
terms of the settlement agreement required an affirmative Agency obligation to provide
Complainant with a starting time of 0800. However, the settlement agreement did not specify
the duration that Complainant would retain this starting time. Nothing in the record reflects
that the parties could or should have anticipated the operational change that underlies
Complainant’s present breach allegations. Accordingly, we find no breach on the basis that the
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settlement agreement does not entitle Complainant to the bargained for starting time ad
infinitum.

EEOC Regulation 29 C.F.R. § 1614.504(a) provides that if a complainant believes that the
agency has failed to comply with the terms of a settlement agreement, the complainant shall
notify the EEO Director, in writing of the alleged noncompliance within 30 days of the date
when the complainant knew or should have known of the alleged noncompliance. The
complainant may request that the terms of the settlement agreement be specifically
implemented, or, alternatively, that the complaint be reinstated for further processing from the
point processing ceased. To the extent Complainant is attempting to challenge the Agency’s
January 18, 2007 action in assigning her to work on Route 2 as a breach of the subject
settlement agreement, we note that such a claim is untimely as Complainant did not raise a
breach allegation until February 15, 2011, nearly four years after the alleged breach.
Moreover, we note that in another appeal filed by Complainant, v. United States
Postal Serv., EEOC Appeal No. 0120102272 (October 15, 2010), the Commission recognized
that one way Complainant could have challenged management's January 18, 2007 order was to
allege breach of the agreement to the EEO Director, in accordance with 29 C.F.R.
§1614.504(a). We note despite the Commission’s statement, Complainant failed to raise a
breach claim with the Agency at that time either.

CONCLUSION

Accordingly, the Agency’s final decision 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
0120112768

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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

March 26, 2013
Date