01982787_r
03-08-1999
Rose M. Martin, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rose M. Martin, )
Appellant, )
) Appeal No. 01982787
v. ) Agency No. 1E-891-1028-94
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The agency's November 14, 1997 final decision finding that it did not
breach the terms of the settlement agreement into which the parties
entered was appealed November 23, 1997. Accordingly, appellant's appeal
was timely filed and is accepted for review. See 29 C.F.R. ��1614.402,
.504(b); EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the terms of the
settlement agreement into which the parties entered.
BACKGROUND
Appellant originally contacted an EEO counselor on August 16, 1994,
claiming discrimination based on sex (female), race (White), and age
(over 40) when she was, inter alia, not allowed to work overtime.
A review of the record reveals that appellant and the agency entered into
a settlement agreement on March 24, 1995, in which appellant agreed to
withdraw the EEO complaint and the agency agreed, in relevant part, that:
Agency will waive time for Complainant to file a grievance about the
overtime issue of approximately March 9, 1995. Grievance will be filed
no later than March 30, 1995.
On July 7, 1995, appellant contacted an EEO counselor alleging that the
agency had failed to comply with the terms of the settlement agreement.
Specifically, appellant stated that a union grievance, in which she
claimed overtime for March 9 - 10, 1995, had been denied for untimeliness.
On August 21, 1995, the agency issued a final decision, finding,
among other things, that it had not breached the cited provision of the
settlement agreement. Specifically, the agency found that the grievance
in question related to overtime from September 1994, not the March 9,
1995 overtime issue covered by the settlement agreement. The Commission
reversed this agency decision in EEOC Appeal No. 01956777 (May 31,
1996),<1> finding that the agency did not provide enough information
about the overtime issue to render a decision. The Commission ordered
a supplemental investigation to determine whether the March 9, 1995
date referred to in the settlement agreement involved the date on which
overtime was allegedly denied, or the date on which a grievance was
denied for untimeliness.
After the supplemental investigation, the agency again denied breach
of settlement in a final decision dated August 14, 1996. The agency
concluded that March 9, 1995 was the date on which overtime was
allegedly denied, but found that the grievance appellant complained
of involved overtime denials from September 1994. Again, appellant
appealed, and the Commission vacated and remanded the August 14, 1996
agency decision in EEOC Appeal No. 01966659 (October 24, 1997). In this
second decision, the Commission found that the agency was not referring
to the same grievance that appellant alleges was denied as untimely.
The agency relied on a grievance for overtime lost in September 1994,
while appellant alleged that a separate grievance, which did relate to
overtime lost on March 9, 1995, had been denied as untimely A second
supplemental investigation was ordered, to determine whether the dismissal
of the grievance for overtime denied on March 9, 1995, was proper.
In its final decision dated November 14, 1997, the agency again found
that it had not breached the settlement agreement. The agency asserted
that although the grievance (Union No. GM-40-95) concerning March 9,
1995 overtime was dismissed as untimely in Step 1 of the grievance
process on April 4, 1995, appellant appealed to Step 2. The agency
notes that untimeliness was not addressed in the Step 2 proceedings,
and that any breach which may have occurred in the Step 1 determination
was corrected when the grievance was settled on July 27, 1995.
A copy of the worksheet for the Step 1 grievance, Union No. GM 40-95,
indicates that appellant filed the grievance on April 4, 1995, raising the
issue of the denial of overtime on March 10, 1995. A copy of the Step 1
denial, dated April 19, 1995, and the Step 2 settlement, dated July 27,
1995, of grievance Union No. GM 40-95, are also included in the record.
The settlement provided appellant with the opportunity to make-up eight
(8) hours of missed overtime, to be worked within ninety (90) days.
On appeal, appellant denies that the grievance was settled, and claims
that the settlement was denied in Step 2 on July 7, 1995. Appellant
includes a copy of a Step 2 decision with a different case number (Union
No. GM-70-95), dated July 7, 1995. The issue from this grievance is
whether the agency is liable for overtime opportunities missed while
appellant was out on sick and annual leave for September 16 - 28,
(no year given).
ANALYSIS AND FINDINGS
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. In addition, 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 agency, under the EEO settlement agreement, was bound to waive time
for appellant to file a grievance on or before March 30, 1995 concerning
the March 9 - 10 overtime issue. The record indicates that appellant
failed to file her grievance until April 4, 1995, and, therefore,
the grievance was properly denied as untimely at Step 1. There was no
breach of the agreement since appellant failed to file her grievance
in accordance with the terms, i.e., by March 30, 1995. Furthermore,
we note that the grievance was settled at Step 2, which rendered the
prior timeliness determination irrelevant. Accordingly, we find that
there was no breach of the settlement agreement. The agency's final
decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
March 8, 1999
______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1The reversal was based in part on
a claim not related to this appeal.