0120064480
08-05-2008
Patricia White, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia White,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120064480
Agency No. 1H331000806
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 27, 2006, finding that it was
in compliance with the terms of the March 9, 2006 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) [Complainant's] supervisor [(S1)] will be advised to put in a
pay adjustment for [complainant] for Martin Luther King Day, and [S1]
will provide a copy of the document to [complainant's] representative
by March 17, 2006;
(2) [S1] will provide [complainant] with copies of her PS Form 3971
for the past 45 days by March 17, 2006;
(3) Management will place [complainant] in the work section designated
for limited duty status employees, and [complainant] will provide her
most current medical documentation to [S1];
(5) [Complainant's] manager [(M1)] will look into [complainant's]
attendance for years 2000 through 2004, and determine whether commendable
attendance gifts are warranted; and
(6) [Complainant's] representative will discuss her findings from her
investigation regarding [complainant] and her co-workers and all parties
agree to abide by the suggestions made.
By letter to the agency dated April 22, 2006, 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 the agency failed to place her in a limited duty status
assignment and provide her with appropriate recognition gifts for her
perfect attendance. Complainant further disputes the agency's contentions
that complainant received copies of documentation for the pay adjustment
and PS Form 3971 in a timely fashion.
In its June 27, 2006 FAD, the agency found that it had fully complied
with the terms of the settlement agreement. Specifically, with regard to
provision 3, S1 explains that she had assigned complainant to a work area
designated for limited duty status employees; however, complainant moved
to a different work area on her own initiative. With regard to provision
5, M1 explains that complainant had already been issued a Certificate of
Recognition for her 2004 attendance. M1 further explains that complainant
had been awarded a collared Postal shirt for her attendance in 2002
and 2003, but complainant's representative indicated that it was the
incorrect size. The agency represents that it will correct that error
when it receives a new batch of shirts.
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, we find that other than complainant's assertions,
there is no evidence in the record of a breach of the settlement
agreement on the part of the agency. With regard to provisions 1 and
2, complainant concedes that she has received a pay adjustment and
copies of PS Form 3971. However, complainant argues that she did not
receive copies of the documentation in a timely fashion. In the past,
the Commission has held that failure to satisfy a timeframe specified
in a settlement agreement does not preclude a finding of substantial
compliance of its terms, especially when all required actions were
subsequently completed. See Sortino v. United States Postal Service,
EEOC Request No. 05950721 (Nov. 21, 1996) (citing Baron v. Department of
the Treasury, EEOC Request No. 05930277 (Sept. 30, 1993). The evidence
in the record is not clear as to the date by which complainant received
copies of the documentation. However, the evidence shows that S1 did
provide complainant with copies of Form 3971 and documentation of the
pay adjustment. Further, the record is devoid of evidence that any delay
on the agency's part was the result of bad faith.
With regard to provisions 3, 5, and 6, complainant has adduced
no evidence to show how the agency has breached the terms of the
agreement. Complainant's vague allegations in this respect are not enough
for us to conclude that the agency breached the terms of the agreement. As
such, we conclude that the agency has substantially complied with the
terms of the settlement agreement.
CONCLUSION
Accordingly, the Commission AFFIRMS the agency decision finding no
breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
__________________
Date
01 & 07 Procedural Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director, Office
of Federal Operations Robbie Dix III, Acting Director,
Appellate Review Programs FROM: Linda Huynh, Legal Intern/ Neal
Thomas, Attorney 8/5/2008 Shelley Kahn, Supervisor
Melissa Miller, Division Director Appeal Number(s) 0120064480 Agency
Number(s) 1H331000806 Hearing Number(s) Complainant(s): Patricia White
Agency: USPS Decision: Affirmed Statute(s) Alleged Basis(es) Alleged
OR- reprisal Issue(s) Alleged B7 (Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Procedural Codes ? 3K - Procedural
Decision
? 3N - Appeal Denied/Dismissed
? 3P - Adverse Inference
? 4H - OFO Affirmed FAD
? 3M - OFO Reversed and Remanded
? 4J - OFO Modified FAD
? 3L - OFO Vacated/Remanded ALL of
Agency's Merits Decision
? 4Q - Compliance required ? 3B - FAD Rescinded
? 3C - Duplicate Docket Number
? 3D - Withdrawal
? 3E - Complaint Settled
? 3G - Other Letter Closure
? 3R - Return to Agency for Consolidation
? 3S - Return to AJ for Consolidation
? 7N - Civil Action Filed Merits Settlement Codes ? 4A - Merits
decision
? 4R - OFO found settlement breach
? 4S - OFO found no settlement breach
? 4E - Agency found settlement breach
X 4F - Agency found no settlement breach
X 4H - OFO affirmed agency
? 4I - OFO reversed agency
? 4J - OFO modified agency (NOTE: if affirmed
In part and reversed in part, then (3L)
Code required if at least one issue is
remanded) ? 3L - OFO remanded PART of the agency's
merits decision (NOTE: If breach is
basis, use of 3L also requires 4I code)
? 3P - Adverse inference
? 5R - class complaint certified
? 5S - class complaint not certified (class requirements not met)
? 5T - class complaint not certified (procedural dismissal)
? 5U - class complaint certification remanded for additional discovery
? 4Q - Compliance required
Revised 6/22/05
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Patricia White USPS
0120064480
OPEN CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken N/A
CLOSED CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken 01-2001-5228
Closed No Procedural decision; Reversed procedural decision & remand;
compliance required; compliance action initiated 01-2002-3894 Closed No
OFO affirmed agency decision finding no discrimination 01-2002-3895
Closed No OFO affirmed agency decision finding no discrimination;
OFO affirmed AJ decision finding no discrimination; OFO affirmed AJ's
summary judgment 01-2002-3942 Closed No Other letter closure 01-2003-3285
Closed No OFO found no settlement breach; OFO affirmed agency decision
finding no discrimination 01-2007-1369 Closed No Procedural decision;
OFO affirmed agency
CLASS ACTION CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken N/A
Linda Huynh August 5, 2008
Attorney Date
2
0120064480
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120064480
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