0120122019
03-11-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120122019
Agency No. 4F-967-0006-11
DECISION
Complainant filed a timely appeal with this Commission from a letter of determination by the Agency dated March 8, 2012, finding that it was in compliance with the terms of a May 6, 2011 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On May 16, 2011, Complainant and the Agency entered into a settlement agreement to resolve a matter that had been pursued through the EEO complaint process. The May 6, 2011 settlement agreement provided, in pertinent part, that:
Supervisor will include a union official upon [Complainant's] request when she has questions or concerns. If a union rep. is not available or operational needs are a priority then a meeting date will be agreed upon by the next business day.
By letter to the Agency dated November 7, 2011, Complainant alleged breach when she was not provided a requested union official when she had questions about her start time. Specifically, Complainant stated that on Friday, October 7, 2011, she asked her supervisor to speak to the union president regarding her start time. Her supervisor told her "not today," but said that he would set up a time at a later date. Complainant further stated that on Saturday, October 8, 2011, she reminded the supervisor about her request and he acknowledged that he remembered her request. Complainant stated that she also requested to talk to the Officer-in Charge (OIC), but the supervisor informed her that the OIC was not at work, but she could talk to her on October 11, 2011.
On October 11, 2011, Complainant said she informed the Supervisor, Customer Service what she had discussed with her supervisor about her interest in talking to the union president and OIC. The Supervisor, Customer Services informed Complainant that the supervisor was not at work and because he (Supervisor, Customer Services) was running the floor that day, Complainant would not be able to talk to either the union president or OIC due to holiday mail and eight hour carriers being forced to work overtime. The Supervisor, Customer Services told Complainant that she could talk to the supervisor the next day.
Complainant stated that on the same day (October 11, 2011), she approached the OIC letting her know about her request since October 7, 2011. Complainant stated, however, the OIC walked away and said "not right now." Complainant then asked the OIC why she was being rude to her and she told her to go back to her case. Complainant stated that, as of November 7, 2011, she had not been afforded time to talk to the union president or the OIC. Moreover, Complainant stated that Agency management "is again treating me differently from other carriers in our office. I regularly see other carriers speaking with management and asking questions in an open and free manner, but I feel that I am not given the same opportunities."
In its March 8, 2012 letter of determination, the Agency found no breach. The Agency stated that according to the supervisor, on October 7, 2011, he walked around to talk to the carriers about their routes. When he reached Complainant and spoke to her about her report time, she stated that she wanted to talk to the OIC and he informed her that he would communicate it to the OIC. Complainant asked him why she could not see OIC immediately and the supervisor explained to her that he did not know the OIC's schedule but would inform her of Complainant's request.
Furthermore, the supervisor stated while Complainant had accused management of not honoring her requests, Complainant was given union time to meet with the Shop Steward on September 30, 2011.
The Agency further noted that according to OIC, she stated that on October 7, 2011, she informed all employees that they need to manage their routes on Saturday, October 8, 2011 and report to work as posted. The Agency also found that OIC stated that on October 5, 2011, Complainant and a named Part-Time Flexible Clerk (PTC) were instructed to report to work on Saturday, October 8, 2011 and Tuesday, October 11, 2011 at 6:30 a.m.; and that between October 12, 2011 and October 14, 2011, Complainant and PTF were scheduled to report to work at 7:00 a.m. Furthermore, the Agency found that OIC stated that if Complainant had any concerns about her start time, she could have talked to her on that day.
In its decision finding no breach, the Agency found that the OIC denied treating Complainant differently from other employees. The OIC also stated that the supervisors cannot make an appointment for her as they did not plan her schedule. The Agency found that the OIC stated that during the month of October 2011, Complainant was given union time on October 11, 14, 22, and 25, 2011. The Agency found that OIC also stated that after Complainant met with the union officials, she never raised the issue about her start time with her. On October 11, 2011, she talked with Complainant about her start time when she came in to work late.
The instant appeal followed.
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, the record in this case contains insufficient evidence for us to determine whether a breach of the instant settlement agreement has occurred. The Agency's letter of determination finding no breach is predicated upon statements by the supervisor, Supervisor, Customer Services and the OIC. However, the record contains no affidavits from these individuals indicating that they purportedly fulfilled the Agency's obligations under the terms of the settlement agreement. Given this lack of evidence, we are unable to ascertain whether the Agency complied with the settlement agreement. Accordingly, this matter is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
The Agency shall supplement the record with evidence clearly showing that it has complied with May 6, 2011 settlement agreement. The supplementation of the record shall include any documentation, such as an affidavit from any responsible management official, indicating whether the Agency complied with Complainant's request for a union official to be included in discussions concerning her start time, and/or if a union representative was not available or operational needs precluded an immediate meeting, whether Agency management arranged for a meeting date by the next business day. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall complete the supplementation of the record and issue a new decision concerning its compliance with the May 13, 2011 settlement agreement.
A copy of the Agency's new decision must be sent to the Compliance Officer as referenced herein.
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), 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 11, 2014
__________________
Date
2
0120122019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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7
0120122019