0120073421
10-15-2007
Joanne M. Daly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joanne M. Daly,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073421
Agency No. 4B-140-0022-07
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the agency dated July 6, 2007, finding that it was in compliance with the terms of an April 23, 2007 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The April 23, 2007 settlement agreement provided, in pertinent part, that:
(2) [Supervisor] with ([identified agency official's] approval) (will) having [Acting Manager/Cheektowaga Post Office] file appropriate paperwork requesting a Special Inspection on Route 25009 immediately.
By letters dated May 25, 2007 and June 6, 2007, complainant claimed that the agency breached provision (2). Specifically, complainant claimed that on May 23, 2007, management terminated the special inspection of her route "citing that my pace was 88-100/minute. I was told I was not walking fast enough." Complainant further claimed that a review of her January 17, 2007 and February 8, 2007 special inspections showed her pace at 84-108/minute. Complainant also claimed that on May 4, 2007, an identified supervisor stated that her pace was 110-120; and that she stated that her May 2007 pace "was due to very light mail conditions and medication I was taking at the time for a previous injury (stress facture)." Furthermore, complainant claimed that management "did not like the volume that I had May 22-23 and looked for a reason to halt the inspection. They reneged on their part of the settlement and tried to place the blame on me."
In its July 6, 2007 final decision, the agency found no breach of provision (2). The agency determined that a special inspection was scheduled to begin on May 21, 2007; and that on May 22 and 23, 2007, the Route Inspector walked with complainant. The agency stated, however, that the inspection was terminated on May 23, 2007 "due to an unacceptable low pace set by the employee and medical concerns raised by the employee as explanation for the slow pace." The agency stated that based on the inquiry, it is management's position that because the special inspection was scheduled and begun, it was in compliance with provision (2).
Furthermore, the agency noted that complainant claimed that her May 2007 special inspection was improperly terminated, and that she was subjected to harassment following the execution of the settlement agreement. The agency advised complainant that her claims are considered a subsequent act of discrimination and are being processed separately as new claims (Agency No. 4B-140-0032-07).
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 did not breach provision (2). Provision (2) provides that complainant's supervisor, with an identified agency official's approval, would have the Acting Manager (AM) file appropriate paperwork requesting a Special Inspection on complainant's route immediately following the execution of the settlement agreement. The record contains an affidavit from AM. Therein, AM stated that she scheduled the Special Inspection. AM stated that a special inspection "is a 6 day event designed to establish a 'normal' evaluation on a delivery route." AM further stated that management appointed a Postmaster (P1) from another facility as the Special Inspector of complainant's route. AM stated that on the first day of the inspection, May 21, 2007, P1 conducted a mail piece count; and that on the second day, P1 walked with complainant "throughout the day." AM stated that during the second day of inspection, complainant's Paces Per Minute (PPM) was recorded as 88 which "was significantly slower than her PPM as high as 120 PPM on a previous occasion." AM stated that according to P1, when questioned about her slower pace, complainant stated that "her foot hurt, she had a heel spur and needed a cortisone shot." AM stated that as part of the purpose of the first walking day was to identify and address any deficiencies in delivery practice "so that the official 'Day of Inspection' (one of the three walking days) is representative of the Carrier's best practice." AM stated that P1 instructed complainant to take "obvious shortcuts including cutting lawns." AM stated that during the hours of observation, P1 stated that complainant "said she had a bad back, heel spurs aggravated by the softness of the lawns, a stress facture that had happened three weeks prior, other medical issues that the agency was previously aware of and that because of a relative with skin cancer on his leg, she was afraid to cross the lawns and expose herself to insecticides."
Further, AM stated that after P1 shared her report with management, a decision "was made to proceed with the inspection for the following second day of walking to see if her performance would improve." AM stated based on P1's observations, complainant's supervisor advised complainant on P1's expectations for the following day. AM stated that P1 was instructed that if complainant's slow PPM continues that she should call in for further instructions. AM stated that according to P1, complainant's PPM ""on May 23 began at 100 PPM but fell back to 88 PPM by about 11:00 a.m." AM stated that after P1 called in, management made a decision to terminate the inspection because "it was clear that we were not seeing 'normal' performance, as demonstrated by the dramatic drop in her PPM from prior observations." AM stated "in all fairness to the Postal Service, [complainant] had to be able to perform her duties as previously demonstrated to make a fair evaluation of the route."
The Commission determines that based upon the above referenced statements, the agency was in compliance with provision 2. Accordingly, the agency's finding of no breach of provision (2) of the settlement agreement is AFFIRMED.
Finally, we note that complainant raised subsequent acts of alleged discrimination following the execution of the settlement agreement. Such claims are to be treated as separate complaints. See 29 C.F.R. � 1614.504(c). The record reflects that the agency properly processed complainant's claims as a separate claim of discrimination (Agency No. 4B-140-0032-07).
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
October 15, 2007
__________________
Date
2
0120073421
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0120073421