01a55350_r
12-16-2005
Doretha Wiley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Doretha Wiley v. United States Postal Service
01A55350
December 16, 2005
.
Doretha Wiley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55350
Agency No. 4H-390-0109-97
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated February 11, 2005, finding that it was in
compliance with the terms of a May 27, 1998 settlement agreement. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The May 27, 1998 settlement agreement provided, in pertinent part, that:
[Postmaster] agrees to change [complainant's] work schedule to 3:30
a.m. until 12 Noon, with a 30 minute lunch. This change is effective
immediately. [Postmaster] will at the end of July 98 examine this schedule
and consider further changing [complainant's] schedule to 3:00 a.m. until
11:30 if productivity and service allow.
On December 18, 2003, complainant filed a formal complaint, identified
under Agency No. 4H-390-0149-03. Therein, complainant raised the
following two claims:
(a) on August 30, 2003, she was not granted overtime; and
(b) the agency breached the May 27, 1998 settlement agreement when it
notified her of a change in her reporting time from 3:00 a.m. to 3:30
a.m., effective September 21, 2003.
The record reflects that the overtime denial issue in Agency
No. 4H-390-0149-03 (identified as claim (a)) was accepted for
investigation, by an agency letter dated January 28, 2004. Therein,
the agency also noted that complainant's breach claim was not accepted
for investigation. On appeal, the agency notes that the investigation
has been completed for the overtime denial claim raised in Agency
No. 4H-390-0149-03, and that this matter was pending a hearing before
an Administrative Judge.
In its January 22, 2004 final decision, the agency found there was no
breach of the May 27, 1998 settlement agreement. Specifically, the agency
found that on October 1, 1998, complainant's reporting time was changed
to 3:00 a.m.; and that complainant had worked the 3:00 a.m. reporting
time since October 1, 1998, until it was changed effective September 21,
2003. The agency stated that the Postmaster who signed the agreement on
behalf of the agency had stated that according to terms of the agreement,
complainant's report time would be changed if productivity and service
allows. The agency stated he Postmaster indicated that complainant's
reporting time was changed due to mail make up and increased Delivery
Point Sequence (DPS), and that there was a decreased need for manual
labor. The agency stated that according to the Supervisor, Customer
Services, if complainant's schedule remained at the 3:00 a.m. reporting
time, the work could not be properly completed; and that an adjustment
had to be made since management could not work the mail.
On appeal, the Commission vacated the agency's finding of no breach and
remanded the matter to the agency. The Commission found that the agency's
January 22, 2004 final decision was predicated upon statements by the
Postmaster and Supervisor, Customer Services. On remand, the Commission
ordered the agency to supplement the record with an affidavit from the
Postmaster and the Supervisor, Customer Services indicating whether they
fulfilled the obligations under the terms of the settlement agreement.
Wiley v. United States Postal Service, EEOC Appeal No. 01A42305 (September
21, 2004).
The agency issued the instant final decision on February 11, 2005.
Therein, the agency again found no breach of the settlement agreement.
The agency stated that complainant's reporting time was changed due to
operational needs. The agency further stated that complainant's schedule
was changed again to its original reporting time of 3:30 a.m., effective
September 21, 2003. The agency stated that the bargaining agreement
between the agency and the union provides that management may change an
employee's reporting time within one hour of the original reporting time;
and that complainant's reporting time had never been changed more than
thirty minutes. The agency stated that management had consistently
honored the terms of the agreement, and that it was never intended to
impede management's ability to make subsequent changes. In support of
its contentions, the agency submitted an affidavit from the Postmaster.
On appeal, complainant contends that the change in her reporting time
was in reprisal for testifying at an EEO hearing for a named employee.
Complainant further claims that in approximately July 2005, "a four
hour change was made to my reporting schedule and the reason provided:
'Due to current operations requirements, it has been determined that it
is necessary to change your bid assignment hours.'"
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. Department of Defense,
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. Department 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. United States Postal
Service, 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).
The agency properly found no breach of the May 27, 1998 settlement
agreement. The record contains an affidavit from the Postmaster.
Therein, the Postmaster stated that effective September 21, 2003,
complainant's reporting time was changed due to operational needs in order
"to improve the distribution operations of our office, no other reason."
The Postmaster further stated that the reporting times of other FTR
Distribution Clerks were also changed. The Postmaster stated that during
the relevant time, the "increase of volume in our DPS mail has decreased
the volume of manual mail to be handled/distributed by a distribution
clerk." With respect to complainant's assertion that the DPS does not
arrive at 3:30 a.m. and that managers process the DPS, the Postmaster
stated that it was not true. Specifically, the Postmaster stated that
because there are no managers on duty at 3:00 a.m. or 3:30 a.m., there
"is no early morning supervisor that could be doing any craft work at
that time of the morning." Furthermore, the Postmaster stated that the
change in complainant's reporting time was not in retaliation for her
prior protected activity.
Upon our review of the record, as referenced above, the Commission
determines that the agency met its affirmative obligation as identified
in the settlement agreement.
Finally, we note that complainant, on appeal, raises new breach claims of
the May 27, 1998 settlement agreement when a four-hour change was made in
her reporting time. We advise complainant that 29 C.F.R. � 1614.504(a)
requires that she contact the EEO Director, in writing, within 30 days
of learning of the breach, regarding new claims of agency non-compliance.
Accordingly, the Commission AFFIRMS the agency's finding of no breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 16, 2005
__________________
Date