0120101197
08-23-2012
Martha Arcinega, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Martha Arcinega,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120101197
Agency No. 4F-920-0026-08
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated September 27, 2010, finding that it was in compliance with the terms of the January 31, 2008 settlement agreement into which the parties entered. For the reasons set forth, we AFFIRM the Agency's decision, finding no breach of the settlement agreement.
BACKGROUND
The settlement agreement provided, in pertinent part, that:
1. Management (Supervisor) agrees to speak to [Complainant] with respect at all times and Complainant agrees to reciprocate with the same respect.
2. Management (Supervisor) agrees to refrain from speaking to [Complainant] about her performance on the workroom floor. If [Complainant's] performance is to be discussed, it will occur in a private setting at which time [Complainant] will have in attendance a union or EEO representative.
3. Management will change 6.5 hours of sick leave to administrative leave and reinstate 6.5 sick leave taken by [Complainant] on 11/14 and will reimburse [Complainant] for a $15.00 co-pay and $4.85 for mileage to and from doctor.
4. [Complainant's] cell phone number will be called by management only for emergencies and the number will be kept confidential from other employees.
5. [Complainant] and management both agree to adhere to the confidentiality agreement which means that all discussion and outcome of the mediation is to be kept confidential by both parties.
In PS Form 2564-A (Information for Pre-Complaint Counseling) dated December 3, 2009, Complainant alleged that the Agency was in breach of provisions 1 and 2 of the January 31, 2008 settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that, on October 27, 2009, the Supervisor embarrassed and humiliated Complainant on the workroom floor and spoke to Complainant in a disrespectful manner. Complainant further claimed retaliation because the Supervisor denied her EEO time to meet with her representative.
In its decision, the Agency concluded that the settlement agreement had not been breached. On appeal, Complainant stated that the Supervisor's statements and remarks regarding the alleged incident were degrading, humiliating, embarrassing, and unprofessional. Complainant asserted that the Supervisor's behavior was not conducive of a safe work environment, and this was not the first time the Supervisor had spoken to Complainant in this manner. Complainant is not claiming breach of provisions 3 through 5 of the January 31, 2008 settlement agreement.
ANALYSIS AND FINDINGS
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 an affidavit dated in March 2010, the Supervisor stated that Complainant has not been treated any differently than any other letter carriers. The Supervisor said that he provides expectations and data to all letter carriers. The Supervisor asserted that, on October 27, 2009, Complainant asked, "What do you want me to put up?" The Supervisor responded, "Mail would be nice." Subsequently, Complainant asked, "What mail do you want me to put up first?" The Supervisor responded, "That's a dumb question. The only mail on the floor is 3rd class. Look around everybody is casing mail that is on the floor because there is no other mail on the floor."
In another affidavit dated in March 2010, the Postmaster stated that all provisions of the January 31, 2008 settlement have been adhered to. The Postmaster said there have not been any incidents of mutual disrespect by either side. The Postmaster asserted that Complainant's performance was not addressed on the workroom floor. The Postmaster stated that the incident that occurred on October 27, 2009, does not constitute breach of the January 31, 2008 settlement agreement. The Postmaster claimed that Complainant has been doing the same job for over twenty years and she should know what the expectations are daily. The Postmaster asserted that the letter carrier comes in, cases first class mail first, and moves on to the standard mail. The Postmaster said that if a letter carrier cannot complete an assignment, then the letter carrier submits PS Form 3996 to the supervisor for overtime or auxiliary assistance. The Postmaster said that the supervisor then decides which to give. The Postmaster asserted that very little or no interaction was necessary between the supervisor and the letter carrier if the letter carrier follows the flow chart. The Postmaster stated that, on that day, there was nothing unusual about the amount of work the letter carrier received and no other letter carrier asked these questions that day. The Postmaster said that it was not normal for a letter carrier to ask these questions when they are the regular on the route. The Postmaster mentioned that these questions were not something a letter carrier would ask every day. The Postmaster claimed that Complainant should have gone right to work upon clock in. The Postmaster articulated that the Supervisor treats everybody the same and if another letter carrier had asked that question, the letter carrier would have received the same response.
The Commission finds that provision 1 of the January 31, 2008 settlement agreement is too vague to be implemented. The term "respect" as used in provision 1 of the settlement agreement is too vague to permit enforcement. Due to the vagueness, the Commission determines that provision 1 of the January 31, 2008 settlement agreement is unenforceable and void. We note that there is other valuable consideration in the settlement agreement apart from provision 1. With respect to provision 2, the Commission finds that the scenario that Complainant describes does not amount to a discussion about her work performance, but specifically a series of replies to Complainant's inquiries. Therefore, we find that the Agency has not breached provision 2 of the January 31, 2008 settlement agreement. Furthermore, regarding Complainant's assertion about denial of official EEO time, we find that to the extent that Complainant is claiming denial of official time for the instant breach claim, we find that Complainant has not shown that she was denied any requested time. Complainant does not provide any specific dates she was denied official time and does not provide any evidence of requests or denials for such time.
CONCLUSION
The Agency's decision finding no breach of the settlement agreement is AFFIRMED.
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), 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 23, 2012
__________________
Date
2
0120101197
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101197