01A30744_r
09-30-2003
Martha Cosper, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Martha Cosper v. United States Postal Service
01A30744
September 30, 2003
.
Martha Cosper,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30744
Agency No. 1F-927-0048-02
DECISION
Complainant timely appealed to this Commission from the agency's October
8, 2002 final determination finding that it was in compliance with the
terms of the August 6, 2002 settlement agreement into which the parties
entered. The settlement agreement provided, in pertinent part, that:
(2) Management will continue to approve or disapprove temporary schedule
changes on a case-by-case basis.
(3) The requirement for temporary schedule changes submitted by
[complainant] on July 27th through September 22nd shall be approved
for FMLA [Family Medical Leave Act] purpose[s] pending specific medical
instruction.
(4) Management will revisit the break and lunch periods of the mail
handlers as a whole and evaluate the works [sic] needs and personal
needs of [complainant] and feed[-]back of [a management official] as to
the reason of the schedule changes.
By contact dated August 22, 2002, complainant alleged that the
agency breached provisions (2) and (3) of the settlement agreement.
Specifically, complainant contends that she was notified of additional
requirements for approval of her FMLA leave that were not included in
the settlement. Complainant explains that an agency official held a
meeting with her shortly after the settlement was signed. The official
informed complainant that she could temporarily move to her requested
schedule for a period of one week, pending her submission of medical
documentation to support her FMLA schedule change request. Complainant
also raised a number of subsequent acts of alleged discrimination in
her contact form.<1>
In its October 8, 2002 final determination, the agency found no
breach of the settlement agreement. Therein, the agency noted that
complainant's schedule change request was not a "mutual transfer,"
and therefore had to be considered on a case-by-case basis pursuant to
local rules. Therefore, the agency found no breach of provision (2)
of the settlement. With regard to provision (3), the agency found that
it complied with the terms by providing complainant with a temporary
schedule change for one week. The agency explained that complainant
was instructed to gather necessary medical documentation to support her
FMLA schedule change request during that week, but that she failed to
do so. When complainant failed to provide the documentation requested,
the agency returned her to her original schedule.
On appeal, complainant argues that the agency's disparate treatment
of mutual trade versus other schedule change requests was a violation
of the agreement and postal regulations. Complainant argues that
the medical documentation she submitted prior to the post-settlement
meeting provided the agency with all of the information it needed.
Complainant also argues, for the first time, that the agency failed to
take any action with regard to provision (4) of the settlement.
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 agency complied with provisions (2) and (3)
of the settlement agreement. The settlement required the agency to
review complainant's schedule change request on a case-by-case basis.
The agency contends that it did so, and complainant has no documentation
to indicate otherwise. With regard to provision (3), the Commission finds
that the agency temporarily provided complainant with an altered schedule,
but then returned her to her original schedule when complainant failed
to provide the medical documents to show that an FMLA schedule change
was warranted. Such action was within the requirements of provision (3).
Complainant also alleged breach of provision (4) on appeal. The agency
has not had an opportunity to respond to this claim, and therefore, the
matter is not properly appealable to this Commission.<2> Therefore, the
Commission will not address whether the agency has breached provision
(4) in the current decision. If complainant wishes to raise a claim
of breach of provision (4), she should do so in writing to the agency's
EEO Director, as provided in 29 C.F.R. � 1614.504(a).
CONCLUSION
Accordingly, the agency's final determination is AFFIRMED.
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
September 30, 2003
__________________
Date
1By letter dated September 9, 2002, the agency properly informed
complainant that the subsequent incidents must be discussed with an EEO
Counselor in a separate complaint of discrimination.
2It is not clear whether complainant forwarded a copy of her arguments on
appeal to the agency, as required by 29 C.F.R. � 1614.403(b). Regardless,
the agency has not had an opportunity to gather evidence and address
whether it complied with settlement provision (4).