0120082535
01-20-2010
Staci E. Clarke, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Staci E. Clarke,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082535
Agency No. 1E-991-0009-07
DECISION
Complainant filed an appeal with this Commission regarding her contention
that the agency violated the terms of a September 12, 2007 settlement
agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29
C.F.R. � 1614.405.
The September 12, 2007 settlement agreement provided, in pertinent part,
that:
(1) a $1500 lump sum payment to be made to counselee no later than
Dec. 1, 2007. Payment to be for time previously spent training.
(2) Training to be offered for Kennewick schemes:
a. Updated maps of scheme location to be provided by Oct. 1, 2007.
b. Trainer to be trained by Oct. 1, 2007.
c. Upon completing of A & B above, a deferment letter will be issued no
later than Oct. 1, 2007.
(3) Upon completion of training, compensation for training hours will
be paid at the appropriate rate.
(4) Upon completion of training, detail opportunities will become
available.
By letter to the agency dated October 11, 2007, complainant alleged
breach of provisions (2) - (4). Specifically, complainant stated
"as of this date October 11, 2007, there has been a breach in the
settlement agreement because number 2A and B have not been met, which
then creates a breach in 2C, 3 and 4." Complainant further alleged
that because the Plant Manager (PM) breached the instant agreement,
"I will lose the majority of the opportunities that I should have had,
had she complied with the agreement."
In its November 1, 2007 letter of determination, the agency found no
breach of provisions (2) - (4). The agency determined that the PM stated
that in regard to provision (2), attempts were made to have the training
and the maps completed by October 1, 2007; however, due to a death in the
trainer's family, delays occurred. The PM stated that management outlined
the delays and provided complainant with a letter reflecting the change.
Regarding provision (4) (detail opportunities will become available), the
PM rejected complainant's assertion that she missed such opportunities,
and that "completion of said work is not limited and will go on for
an extended period." Specifically, the PM stated the training and the
detail opportunities were provided to assist complainant in obtaining
a bid position.
Complainant filed an appeal from the agency's November 1, 2007 final
decision finding no breach of provisions (2) - (4). The Commission found
that there was insufficient evidence to determine whether a breach of
provisions (2) - (4) occurred. The matter was remanded for the agency
to conduct a supplemental investigation to determine whether it was in
compliance with provisions (2) - (4). Clarke v. United States Postal
Service, EEOC Appeal No. 0120081089 (March 14, 2008).
Following a supplemental investigation on provisions (2) - (4), the agency
issued a new letter of determination on April 7, 2008, finding that it
was in compliance with the September 12, 2007 settlement agreement.
The agency stated that complainant was trained on October 17 and 18,
2007; and that complainant traveled to Pasco, Washington, on October
19, 2007 for onsite familiarization. The agency further stated that
from January 11, 2008 to February 9, 2008, complainant was off work.
The agency stated that on February 22, 2008, complainant was the
senior bidder on a Kennewick scheme job. The agency stated that on
February 28, 2008, complainant was issued a Training Department Notice
and began training on February 29, 2009. The agency indicated that,
upon completion of successful training, complainant would be compensated
for the hours spent training and would be awarded bid position 95707737.
On appeal, complainant acknowledges that in regard to provision (1),
she received the $1,500 lump sum payment "but it was paid on December
28, 2007 and not on the date agreed upon which was December 1, 2007."
Complainant further argues that in regard to provision (2), she was to
be trained by October 1, 2007 but "was not trained until October 17,
18, and 19 according to [PM's] own documentation. The updated maps of
scheme location also were not provided at that time. [PM's] documentation
provided to you about the completion of A & B above, proves that there
was no breach in the settlement agreement and no deferment letter was
issued by October 1, 2007." Complainant argues that had she been provided
the deferment letter on October 1, 2007, her training would have been
completed and "my compensation for training hours would have been paid
at the appropriate rate." Complainant states that the information PM
provided to the Commission "is the training deferment notice on February
28, 2008 awarding of bid position 95707737 to me and has nothing to do
with my EEO."
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 complainant has not shown that the
agency breached provisions (2) - (4) of the subject agreement.
Regarding provisions (2) and (3), the record contains a copy of the
PM's letter dated March 24, 2008. Therein, PM stated that on February
28, 2008, complainant started her Kennewick scheme training and upon
completion of her training, complainant would be compensated for her
hours spent training. PM stated that she noted that complainant "has
bid a Kennewick scheme job # 95707737 on 2/22/08 and upon successful
completion of her scheme training she will be awarded this position.
Also note that on her PS 3972 that [complainant] was off of work due to
unfortunate circumstances from January 11, 2008 - February 9, 2008."
The record also contains a copy of the Postmaster's email dated September
4, 2008 to a named agency official. Therein, the Postmaster stated
that complainant's "training maps were updated in the training room."
The record contains a copy of complainant's test results for Kennewick
scheme training indicating that complainant passed it on April 1, 2008
and June 27, 2008. Finally, the record contains a copy of a payroll
check No. P 17536167 dated September 5, 2008 made out to complainant in
the amount of $3,806.04 for her training hours.
Further, we note that on appeal, complainant, argued that she was
supposed to be trained by October 1, 2007 pursuant to the terms of the
agreement, but that she was not trained until October 17 - 19, 2007.
The Commission has held that the failure to satisfy a time frame specified
in a settlement agreement does not prevent a finding of substantial
compliance of its terms, especially when all required actions were
subsequently completed. Lazarte v. Department of the Interior, EEOC
Appeal No. 01954274 (April 25, 19960; Sortino v. United States Postal
Service, EEOC Request No. 05950721 (November 21, 1996), citing Baron
v. Department of the Treasury, EEOC Request No. 05930277 (September 30,
1993) (two weeks delay in transfer of official letter of request rather
than letter of apology found to be substantial compliance); Centore
v. Department of Veterans Affairs, EEOC Appeal No. 01A04637 (November
2, 2000) (a few days after sixty-day time period for compliance not a
material breach of settlement agreement). As such, we find that the
agency substantially complied with the settlement agreement even though
it did not meet the agreed upon time frame.
Regarding provision (4), we note that the record contains a copy of the
Postmaster's memorandum dated February 22, 2008. Therein, the Postmaster
stated that complainant was awarded the bid position of 95707737.
Upon review, we find that the agency has substantially complied with
provisions (2) - (4).
Finally, we note that on appeal, complainant raises a new breach claim
stating that she did not receive the $1,500 lump sum payment on the date
agreed upon (provision 1). It is inappropriate for complainant to raise
the new breach claim for the first time as part of the instant appeal.
Accordingly, the agency's final decision finding no breach of provisions
(2) - (4) of the subject agreement 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
January 20, 2010
2
0120082535
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013