0120091421
08-05-2009
Nancy Reider, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nancy Reider,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091421
Agency No. 4F920003608
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 7, 2009, finding that it
was in compliance with the terms of the February 14, 2008 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.
The settlement agreement provided, in pertinent part, that:
1) There will be no apparent retaliation; 2) All employees will be
equalized regarding work available/overtime per the national agreement;
3) Medical documentation issue will be settled through the grievance
procedure #PS1407 to reflect that complainant is not and was not on
restricted sick leave; 4) Management will inform a specific co-worker
on 2/15/2008 that she is not to create a hostile working environment,
which will not be tolerated; and 5) All parties present will work together
to improve communication in an effort to resolve any future differences
when possible.
By letters to the agency dated March 10, and 20, 2008, complainant
alleged that the agency was in breach of the settlement agreement, and
requested that the agency specifically implement its terms. Specifically,
complainant alleged that on 2/20/2008, management allowed a specific
co-worker (noted above) to harass her; on 3/05/2008 a manager improperly
called her at home while she was on excused sick leave to inquire when
she would be returning to work so he could make the schedule; and on
3/20/2008 she was denied overtime. In addition, complainant stated
that these three issues not only breach the above agreement, but they
also infringe upon and breach prior settlement agreements, EEO Numbers:
4F-920-0054-05 and 4F-920-0174-04, involving her and the agency.
In its January 7, 2009 FAD, the agency concluded that the Postmaster
had found that complainant worked 2 hours of overtime on 3/20/2008,
and a review of clock rings reflect she worked 2.00 hours of overtime
(code 053) and 0.02 of penalty overtime (code 043). The Supervisor
of Customer Service did not dispute that he called complainant at home
for scheduling purposes, which is not contrary to any of her settlement
agreements. The Postmaster stated that management does not allow the
affected co-worker to harass complainant and has addressed issues when
brought to its attention. Specifically, in regard to the incident on
2/20/2008, the Postmaster stated that the former Supervisor of Customer
Service did speak to both the identified co-worker and complainant and
considered the matter resolved. The agency further concluded that it
has not breached any of the conditions contained in this, or any other
settlement agreement involving complainant.
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 burden is on the party alleging breach to
establish that a breach has occurred. Based on the evidence in the
record, the Commission finds that complainant has not shown that the
agency has breached the settlement agreement at issue.1 Recognizing that
complainant details her own account in several letters to the agency,
the Commission is not swayed in finding that the agency has breached the
settlement agreement at issue in this matter. Accordingly, the agency's
final decision finding no settlement breach is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 (S0408)
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 (Z1008)
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 5, 2009
__________________
Date
1 In its final decision, the agency also sufficiently counters
complainant's additional claims of breach/infringement involving the
previous settlement agreements listed under EEO Numbers: 4F-920-0054-05
and 4F-920-0174-04.
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0120091421
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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