0120092734
07-02-2010
Mercedes E. Tercilla, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Mercedes E. Tercilla,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120092734
Agency No. 4H330004201
DECISION
Complainant filed a timely appeal with this Commission from an agency
determination (AD) by the Agency dated May 22, 2009, finding that it was
in compliance with the terms of the August 10, 2001 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.
ISSUE PRESENTED
Whether the Agency violated the terms of the August 10, 2001, settlement
agreement.
BACKGROUND
The record indicates that Complainant entered into a settlement agreement
with the Agency on August 10, 2001. The settlement agreement provided,
in pertinent part, that:
In a good faith effort by both parties to resolve this matter at the
lowest possible level, the following will constitute the full settlement
of this EEO case and due to the fact that the Station Manager through a
grievance-Step A meeting agreed that Complainant would be granted 06:30
a.m. temporary schedule changes (revised schedules) on a monthly basis,
with Complainant's understanding that the circumstances may change
(needs of service, heavy mail volume, Christmas season, etc.), which
may cause her reporting time to change as well.
No retaliation will stemmed [sic] from filing this EEO complaint. This
settlement is not to be construed as any admission of wrongdoing by
either party. ROI, Management's Aff., at page 10.
On June 6, 2007, Complainant alleged that the Agency breached the
settlement agreement by requiring her to report to work at 7:00 a.m.,
although she had previously been reporting to work at 6:30 a.m. since the
execution of the settlement agreement in 2001. Complainant requested that
the agency return her to a 6:30 a.m. begin tour time. In its August 15,
2007, AD, the Agency concluded that it did not breach the agreement.
Complainant subsequently appealed this decision to the Commission.
On February 19, 2009, the Commission issued a decision, finding that it
was not possible to ascertain whether the Agency breached the agreement
because it failed to supplement the record with evidence pertinent
to complainant's breach claim.1 Accordingly, the Commission ordered
the Agency to: (1) supplement the record with affidavits and other
documentary evidence as to whether it was in compliance with the above
provision of the August 10, 2001 settlement agreement; and (2) issue
a new determination as to whether the Agency breached the respective
provisions of the settlement agreement within 30 calendar days of the
Commission's decision.
On May 22, 2009, the Agency issued a new determination. In its AD, the
Agency concluded that it had complied with the terms of the settlement
agreement. The Agency noted that Complainant had maintained her requested
6:30 a.m. schedule from August 10, 2001 through May 27, 2007, a period
of over five years. The Agency then noted that the agreement expressly
provided that circumstances may necessitate a change in the terms of
the settlement agreement. In this respect, the Agency determined that
because mail volume had decreased and due to organizational changes within
the Postal Service, management changed all carriers tour report times.
On these grounds, the Agency determined that it had not breached the
terms of the settlement agreement.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates arguments that she previously
presented. In this regard, Complainant avers that the Agency breached the
terms of the settlement agreement when it changed her schedule on May
27, 2007, four days before the end of the month. Further, Complainant
contends that the Agency failed to issue a new determination within
the time frame stipulated in the Commission's order. Complainant also
contends that the Agency failed to provide the supplemental documents
as stipulated in the Commission's order dated February 19, 2009.
On appeal, the Agency argues that Complainant has not submitted any new
evidence on appeal that warrants reversing its AD. The Agency requests
that the Commission affirm its determination finding no breach of the
settlement agreement.
ANALYSIS AND FINDINGS
Initially, we address Complainant's contention that the Agency failed
to provide supplemental documentation as stipulated in the Commission's
February 19, 2009, final order. In this respect, we find that the Agency
submitted appropriate documentation such that it complied with paragraph
(1) of the Commission's order. Specifically, Complainant's immediate
supervisor (S1) provided testimony sufficient to determine the Agency's
compliance with the settlement agreement.2
Next, we address Complainant's contention that the Agency failed to issue
a timely decision in compliance with our February 19, 2009 Order. In this
regard, we note that the Agency was directed to issue a new determination
within 30 days of the Commission's decision becoming final. Our decision
in EEOC Appeal No. 0120073789 became final on March 21, 2009, 30 days
after it was issued. Accordingly, the Agency had 30 days after that date
to issue its new AD, i.e., April 20, 2009. The record indicates, however,
that a decision was not issued until May 23, 2009, 32 days after the
deadline set forth in paragraph (2) of the Commission's final order.
While the Commission has the authority to sanction an agency for delays
in complying with a Commission Order, we find that a sanction would not
be appropriate in the case at hand. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614.404, Chapter 9, at 5.
In this regard, we note that the Agency complied with paragraph (1)
of the Commission's order. Moreover, to the extent that its new AD was
untimely, we find no persuasive evidence that the Agency's delay warrants
the imposition of a sanction.
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).
Complainant contends that the Agency breached the terms of the agreement
by changing her schedule four days before the end of the month. In this
regard, we note that the settlement agreement provides, in pertinent part,
that "[...] complainant would be granted 06:30 a.m. temporary schedule
changes (revised schedules) on a monthly basis." In this respect, we find
that the agreement does not indicate, as argued by Complainant, that the
Agency was required to revise her schedule only at the end of the month.
Indeed, the agreement expressly states that her schedule may change as
circumstances within the Agency necessitated. The Agency's testimony
indicates that circumstances did in fact change, thereby requiring
all carriers to begin at a later start time. Further, we note that
agreement did not specify a particular time period in which the new
schedule would be maintained. 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). Applying the
above legal principle, and taking into account the fact that the Agency
provided Complainant with a 6:30 a.m. begin tour schedule for a period
of approximately five and a half years, we determine that the Agency
complied with the settlement agreement.
CONCLUSION
Accordingly, after a careful review of the record, including Complainant's
arguments on appeal, the Agency's response, and arguments and evidence
not specifically discussed in this decision, we find that the agency
complied with the terms of the settlement agreement. Therefore, we AFFIRM
the Agency's determination that no breach occurred.
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
____7/2/10______________
Date
1 Tercilla v. United States Postal Service, EEOC Appeal No. 0120073789
(February 19, 2009).
2 ROI, Management's Aff., at page 10.
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0120092734
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092734