0120121810
08-22-2012
Doretha I. Sorey, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Doretha I. Sorey,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120121810
Agency No. 4G-330-0049-12
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated February 23, 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 (African-American) believed her supervisor (Supervisor) was pitting Hispanic letter carriers against African-America letter carriers and giving Hispanics preferential treatment when it comes to overtime assignments. Specifically, the Supervisor gave Hispanic employees overtime indoors while African-American employees were given overtime outside. She contacted an EEO counselor to address her concerns.
On January 11, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) When providing instructions pertaining to Postal Business on the floor, [the Supervisor] agrees to speak English.
(2) [The Supervisor] and [Complainant] agree to treat each other professionally.
(3) When available, overtime shall be offered to [Complainant] equitably including A.M. and P.M.
(4) The Letter of Warning dated October 28, 2011 regarding miscans (sic.) will be removed from all of [Complainant's] records and files.
By letter to the Agency dated February 17, 2012, Complainant alleged that the Agency was in breach of provision (3) of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that on February 10, 2012, the Supervisor informed Complainant and another African American employee of which sections they were assigned to work as overtime and then asked a Hispanic employee which section she would like.
In its February 23, 2012 FAD, the Agency concluded that Complainant failed to show that the Agency breached the settlement agreement. The Agency determined that while the named Hispanic comparator was asked what overtime assignment (on a route different from her own) she could complete within 1.5 hours, Complainant and the other named African American employee were also provided with overtime assignments on this date on their own routes. In addition, the Agency noted that the most recent Overtime Worksheet (Quarter 1) indicated that Complainant had received more overtime hours than anyone else on the overtime desired list.
This appeal followed. On appeal, Complainant asserted that the Supervisor does not allow African-American employees to choose their own assignments. As such, she asserted that the Settlement Agreement was violated.
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 the instant case, we find that Complainant is concerned with the Supervisor assigning preferential overtime or allowing other employees to choose their own overtime assignments. We note that provision (3) of the Settlement Agreement only provides Complainant with "equitable" overtime. This provision was not specific as to whether Complainant should be provided specific types of overtime or that she be allowed to select her overtime assignments. Complainant has not established that provision (3), concerning the equitable distribution of overtime, has been violated, especially in light of the fact that the evidence shows that Complainant has been provided more overtime than any other employee on the overtime desired list.
Complainant's claims in this matter may be allegations of subsequent acts of reprisal and harassment after the settlement was signed. We have held that claims of further discrimination should be processed as a new, separate complaint, rather than as a breach allegation. See Bindal v. Dep't of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990). Therefore, if Complainant wishes to pursue such new claims, then Complainant should raise her claim of discrimination as a new, separate EEO claim instead of a breach allegation pursuant to 29 C.F.R. � 1614.105.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination finding no breach of the settlement agreement.
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
August 22, 2012
__________________
Date
2
0120121810
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121810