0120102427
11-04-2010
Jamie R. Gervais, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Jamie R. Gervais,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120102427
Agency No. 4F940016107
DECISION
Complainant filed a timely appeal with this Commission from a Decision by the Agency dated April 20, 2010, finding that it was in compliance with the terms of the November 14, 2007 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.
The settlement agreement provided, in pertinent part, that:
(1) [Complainant] will be allowed to report to work on her weekly schedule at 3:30AM or earlier if other clerks are allowed to report earlier;
(2) [Complainant] will be allowed to assume the mail handler position on Friday night and will cover annual leave of the "graveyard" mail handler subject to medical clearance from her doctor.
By letter to the Agency dated December 7, 2009, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency changed her start time to 4:00 AM. Complainant further alleged that another clerk was allowed to report two hours earlier and earn overtime but that when Complainant complained to management, she was told "you got overtime last week." Complainant also mentioned other clerks who were allowed to come in early while management would not allow Complainant to come in early.
In its April 20, 2010 decision, the Agency concluded that is had not breached the agreement. The Agency noted that the volume of mail had declined and so operational needs of the facility had changed. The Agency observed that that the agreement was signed in November 2007 but that the alleged breach did not occur until almost two years later and that "management adhered to the settlement agreement until such time that the [Agency] experienced a substantial decline in mail volume which necessitated operational changes in 2009, nearly two years later." Decision, p. 2. The Agency further noted that "when operationally feasible, management continued to allow you to come in early." Id. The Agency noted that no agreement last forever and concluded that it had not breached the agreement.
On appeal, Complainant argues that had she known that the Agency could change the terms of the agreement after two years, she would not have signed the agreement and dropped her underlying complaint. Complainant further argues that, even assuming that the operational needs of the Agency changed, there is enough work to allow her to report to work 30 minutes early and remain "fully occupied." Complainant's Appeal Brief, p. 1. The Agency requests that we affirm its Decision.
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 the Agency has not breached the settlement agreement. Complainant does not dispute that the Agency let Complainant report to work at 3:30 am for approximately two years. Complainant essentially asserts that this arrangement should last indefinitely. However, the Commission has held that in the absence of a specific time frame in a settlement agreement, it is interpreted to be for a reasonable amount of time. Parker v. Department of Defense (Defense Logistics Agency), EEOC Request No. 05910576 (August 29, 1991) (agreement that did not specify length of service for position to which complainant was promoted was not breached by the temporary detail of complainant two years after the execution of the settlement agreement); Gomez v. Department of the Treasury, EEOC Request No. 05930921 (February 10, 1994) (in absence of specified time frames for performance, the Commission expects that the terms of a settlement agreement will be implemented within a reasonable period of time). In this case, the record shows that even after changing her start time, the Agency let Complainant come in early on numerous occasions between November 28, 2009 and January 1, 2010. We therefore find that the Agency has substantially complied with the agreement and we AFFIRM the Decision.
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
November 4, 2010
__________________
Date
2
0120102427
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120102427