01A31368_r
03-02-2004
Michelle A. Zeigler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michelle A. Zeigler v. United States Postal Service
01A31368
March 2, 2004
.
Michelle A. Zeigler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31368
Agency No. 4-C-440-0026-00
DECISION
Complainant filed an appeal with this Commission from an October 28,
2002 determination that it did not breach the terms of a December 20,
2000 settlement agreement. The Commission accepts the appeal.<1> 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:
.........All Managerial Officials will be advised that if there is
overtime work available within complainant's medical restrictions that
employees without medical restrictions are allowed to work, complainant
will not be denied the opportunity to work overtime based upon her
restrictions.
By letter to the agency dated September 3, 2002, complainant stated that
a named agency official brought a part-time clerk (herein referred to as
�C�) into her unit, and assigned C all of complainant's duty assignments.
In correspondence dated September 23, 2002, responding to the agency's
request to provide additional information, complainant asserted that
she was denied overtime work from approximately July 2001 to October
2001, and from May 2002 through September 14, 2002. Complainant noted
that she was on a detail assignment from November 2001 to April 2002.
Complainant claimed that the �discrimination� started in July 2001,
when C arrived at her unit, and was assigned the same type of duties
specified in complainant's Officer of Workers Compensation Program job
offer. Complainant asserted that C's presence in the unit also serves
to block her from receiving overtime work, resulting in a breach of the
settlement agreement.
In its October 28, 2002 determination, in pertinent part, the agency
first noted that complainant previously filed a breach claim in May 2001,
claiming that she was denied the opportunity to work 8 hours of overtime
on her off-day. The agency indicated that it investigated this claim, and
concluded that 8 hours of work within complainant's restrictions was, in
fact, not available. The agency issued her a final decision finding no
breach, and provided her with appeal rights to the Commission. Based on
this history, the agency determined that the instant breach claim had
already been addressed, and concluded that complainant failed to show that
a breach of the settlement agreement occurred. Additionally, the agency
indicated that complainant did not appeal its prior decision, and advised
complainant that that any appeal taken now would be deemed untimely.
Despite the agency's advisory comments as stated above, complainant
filed the instant appeal on December 4, 2002. In its response the
agency elaborates on the arguments set forth in its October 28, 2002
determination. Specifically, the agency argues that the instant appeal
should be deemed untimely in reference to its prior final decision,
received by complainant on May 19, 2001.
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).
As an initial matter, we find that the agency should have considered
complainant's September 4, 2002 letter as a new breach claim.
Specifically, we determine that the prior claim was limited to a
single situation, which apparently arose in May 2001, when complainant
purportedly was not afforded with 8 hours of overtime work on her day-off.
In contrast, the instant breach claim concerns a later time frame,
occurring after the May 2001 incident, and alleges an on-going denial of
overtime work assignments over two subsequent time periods. Therefore,
we determine that the agency did not already address this matter in it
adjudication of complainant's prior breach claim. Moreover, we find
that the agency improperly determined that complainant could not file
an appeal regarding the new breach claim.
We also determine that complainant's instant appeal is timely.
We note that the agency's October 28, 2002 determination did not provide
complainant with appeal rights to the Commission. The agency's October
28, 2002 determination is nevertheless construed as its final decision
finding no breach of the settlement agreement. See 29 C.F.R. ��
1614.504(a) and (b). Moreover, we find that there is no evidence of
record confirming the date that complainant received the October 28, 2002
decision, and that the lack of appeal rights is sufficient justification
to waive this time limit. See 29 C.F.R. � 1614.604(c).
Next, in considering complainant's breach claim, we find that the
settlement agreement specifies that the agency will provide complainant
with overtime work that is available to other workers, if it is within
her medical restrictions, and will not deny her suitable overtime work
because of her medical restrictions. Complainant claims that the agency
denied her overtime work from July 2001 to October 2001, and from May
2002 through September 14, 2002; however, complainant provides no
evidence specifying how many overtime assignments she was denied during
these two time periods, the number of hours involved, or whether these
assignments were within her medical restrictions. Complainant also does
not submit any evidence to show that these purported denials were based
on her medical restrictions. We note that complainant has the burden
of proof to show that the agency breached the settlement agreement.
See Vega v. U.S. Postal Service, EEOC Appeal No. 01986613 (June 30,
200); Pearson v. U.S. Postal Service, EEOC Appeal No. 01A02918 (July 6,
2001), request for reconsideration denied, EEOC Request No. 05A10957
(July 6, 2001).
Furthermore, we find that complainant appears to claim that her purported
lack of overtime assignments is the consequence of C joining the unit.
Complainant is apparently suggesting that C received the available
overtime assignments instead of her. However, we find that agency
personnel records reflect that complainant worked 8.93 hours of overtime
during the period of September 8, 2001 to December 28, 2001, and .42
hours of overtime in the period of May 6, 2002 to September 6, 2002.
By comparison, for these same time periods, C worked 4.19 and 2.60
hours of overtime, respectively. These time periods do not precisely
correspond to those identified by complainant; however, we find that
these records, which reflect that complainant received nearly twice
as many overtime hours as C in the first period, and C received only 2
more hours than complainant during the second period, fail to support
complainant's assertion that C �blocked� her from receiving suitable
overtime assignments, resulting in a breach of the settlement agreement.
Finally, to the extent that complainant is claiming that the agency
improperly gave her work assignments to C, we find that non-overtime work
assignments do not fall within the scope of the settlement agreement,
such that this matter must be treated as a separate claim. See 29
C.F.R. � 1614.504(c). Therefore, we advise complainant that this matter
constitutes a separate complaint, and that if she has not already done
so, she must contact an EEO Counselor should she wish to pursue it.<2>
Accordingly, for the reasons set forth above, we AFFIRM the agency's
determination that it did not breach the settlement agreement as claimed
by complainant.
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
March 2, 2004
__________________
Date
1We note that the agency did not provide complainant with appeal rights
to the Commission in conjunction with its October 28, 2002 determination.
2We note that the record reflects that complainant has a pending complaint
concerning C's days-off, Saturday/Sunday, apparently provided to her as
a religious accommodation.