01A42305_r
09-21-2004
Doretha Wiley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Doretha Wiley v. United States Postal Service
01A42305
September 21, 2004
.
Doretha Wiley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42305
Agency No. 4H-390-0109-97
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 22, 2004, 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, in resolution of the captioned
complaint, 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
by Agency No. 4H-390-0149-03. Therein, complainant claimed (a) that
on August 30, 2003, she was not granted overtime; and (b) the agency
breached the instant settlement agreement when it notified her of 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 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 overtime denial claim
raised in Agency No. 4H-390-0149-03, and that this matter is pending a
hearing before an Administrative Judge.
On January 22, 2004, the agency issued a final decision regarding the
instant settlement agreement, finding no breach.<1> The agency determined
that on October 1, 1998, complainant's report 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 determined that the Postmaster who signed the agreement,
stated that the settlement agreement was honored. The agency further
determined that the Postmaster also stated that the terms of the agreement
states that complainant's schedule would be changed if productivity
and service allows. The agency determined that the Postmaster stated
that due to mail make up and increased Delivery Point Sequence (DPS),
there was a decreased need for manual labor. The agency found that the
Postmaster stated that the DPS is the primary make up of mail received at
3:00 a.m. and it does not require distribution into a case for further
breakdown; and that it has been broken down so that the mail carrier
can take the mail directly to the street. The agency stated that the
Postmaster found that manual volume is not a priority at this time; and
that management has a right to change the schedule one hour either way,
according to an union contract.
The agency further stated that according to a Supervisor, Customer
Services, that if the 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. Furthermore, the
agency determined that the Supervisor, Customer Services stated that
the change of complainant's report time had nothing to do with prior
protected activity or for her union involvement.
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).
In the instant case, the Commission determines that the record in this
case contains insufficient evidence for us to determine whether a breach
of the instant settlement agreement has occurred. We note, for example,
that the agency's final decision finding no breach is predicated upon
statements by the Postmaster and Supervisor, Customer Services. However,
the record contains no affidavit from the Postmaster and Supervisor,
Customer Services indicating that they purportedly fulfilled the
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, the agency's finding of no
breach of the settlement agreement is VACATED. 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 the settlement agreement. The supplementation
of the record shall include any documentation, such as an affidavit from
the agency's Postmaster and Supervisor, Customer Services. Within thirty
(30) calendar days of the date this decision becomes final, the agency
shall issue a new decision concerning whether it breached the May 27,
1998 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (R0900)
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 (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
September 21, 2004
__________________
Date
1The Commission notes that on appeal, the agency acknowledges that in
its January 22, 2004 decision, it inadvertently listed the agency number
for the overtime denial claim (4H-390-0149-03), instead of the captioned
agency number. As a consequence, complainant also referenced Agency
No. 4H-390-0149-03, when filing the instant breach claim. Complainant is
advised that when a decision is rendered on the overtime denial claim
raised in 4H-390-0149-03, she will be provided appeal rights for that
matter.