0120102764
12-10-2010
Ruth D. Crutcher, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Ruth D. Crutcher,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120102764
Agency No. 1H-351-0006-10
DECISION
Complainant timely filed an appeal with this Commission from a final
determination by the Agency dated May 25, 2010, finding that it was in
compliance with the terms of the December 14, 2009, 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
The issue presented on appeal is whether Complainant has established
that the Agency is in breach of a settlement agreement.
BACKGROUND
On December 17, 2009, Complainant and the Agency entered into an agreement
to settle Complainant's EEO complaint. The settlement agreement provided,
in pertinent part, that:
(1) Respondents and Complainant agree that during normal
circumstances, Respondents will not request Complainant to perform any
Agency duties while Complainant is on her authorized break period;
however, all parties agree that the urgency of the Agency work may
dictate that Complainant will be requested to perform duties while on
break during emergency situations.
(2) Respondents agree to research the overtime schedule during
the times for which Complainant claims overtime was provided for other
employees but not for her. Following the review and a determination by
Respondents that an improper bypass had occurred, a makeup opportunity
will be afforded to Complainant.
By letter to the Agency dated April 13, 2010, Complainant, an Expeditor
Clerk, 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 provide her
with 60 hours of make-up overtime as was stipulated by the settlement
agreement.
In its May 25, 2010, final determination letter, the Agency concluded that
it had complied with the settlement agreement. The Agency explained that,
pursuant to the Settlement Agreement, management and a union official
conducted a review of the overtime tracking sheet. The tracking sheet
revealed that Complainant had been by-passed for overtime for a total of
sixty hours. The Agency maintained that Complainant was given sixty hours
of make-up overtime, as is evidenced by the Overtime Tracking charts.
The Agency contends that Complainant is comparing her overtime hours
with employees who have a different schedule, different non-scheduled
days and different working skills.
Complainant maintains that management has breached the settlement
agreement because the majority of the make-up overtime that she has
been assigned was given to her on Mondays which was her scheduled day
off and therefore the day she normally would have worked overtime.
Complainant contends that labeling the time she worked as "make-up
overtime" is a misnomer. Notwithstanding the type of overtime that she
has received, Complainant maintains that the Agency has afforded her
only 42 overtime hours instead of the agreed upon 60 hours. Further,
Complainant argues that the overtime hours that she worked on March
22, 2010, should not be charged as make-up overtime because all of the
employees had to work overtime on that day. She also maintains that
she has not been paid for six hours of overtime that was agreed to by
the parties in the settlement agreement. Finally, Complainant asserts
that her break was interrupted when a truck arrived late at the docks.
Complainant contends that she was singled out by management to assist
with this truck.
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.
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 (Dec. 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
(Aug. 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 (Dec. 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 Commission finds that the settlement agreement
must be set aside because the terms are too vague and general to have
allowed for a meeting of the minds between the parties. Specifically, we
find that the provision that Complainant would be given make-up overtime
is too ambiguous. To this end, we note the divergent interpretations
by the parties with respect to what the term make-up overtime means.
Complainant contends that the overtime offered to her was not make-up
overtime because it was offered on days that she would have normally
worked overtime and, on days where all employees were required to work.
The Agency, on the other hand, believed that as long as it made an
announcement that Complainant was going to be working make-up overtime
prior to the assignment, it had fulfilled its obligation to offer
Complainant make-up overtime. Consequently, we find that there was no
contemporaneous meeting of the minds between the parties and therefore,
the settlement agreement is void for vagueness. See Mullen v. Dept. of
the Navy, EEOC Request No. 05890349 (May 18, 1989). When voiding an
agreement, the parties are returned to the status quo at the time the
agreement was entered.
CONCLUSION
Accordingly, the Agency's Letter of Determination finding that the Agency
was in compliance with the terms of the settlement agreement is VACATED,
and the matter is REMANDED to the Agency for reinstatement of her prior
complainant from the point where processing ceased in accordance with
the ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the Agency is ordered to:
(1) Resume the processing of this matter from the point where processing
ceased. The Agency shall acknowledge to Complainant that it has
reinstated and resumed the processing of her complaint.
(2) Send a copy of the Agency's Letter of Acknowledgment to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
___12/10/10_______________
Date
2
0120102764
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120102764