01a53422_r
12-22-2005
Stephanie S. Martin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephanie S. Martin v. United States Postal Service
01A53422
December 22, 2005
.
Stephanie S. Martin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53422
Agency No. 4H-330-0107-03
DECISION
Complainant filed a timely appeal with this Commission from a final
determination by the agency dated March 17, 2005, finding that it was in
compliance with the terms of a January 24, 2003 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The January 24, 2003 settlement agreement provided, in pertinent part,
that:
2. [Complainant] will be offered overtime on an equal basis to
others. [Complainant] will be integrated into the rotation;
3. [Complainant] will receive make up overtime (on days she normally
works) of 66 hours over the next 75 days;
4. [Complainant] shall be paid for 16 hours of overtime within 2 pay
periods;
By Information for Pre-Complaint Counseling (PS Form 2564-A) dated
September 27, 2004, complainant claimed breach, and requested that the
agency specifically implement its terms.
The record reveals that on October 1 and 27, 2004, an EEO Specialist
contacted complainant requesting clarification on complainant's breach
claims. Complainant responded to the EEO Specialist's request in an
affidavit dated November 6, 2004.<1> Therein, complainant claimed
that the agency breached provision 3 when she did not receive make up
overtime of 66 hours over the next 75 days following the execution of
the settlement agreement.
In its March 17, 2005 final determination, the agency found no breach
of provision 3.
On appeal, complainant contends that she did not receive the overtime
hours agreed to in accordance with provision 3. Specifically,
complainant states that the agency failed "to honor my EEO agreement
within the definition defined by the employees' collective bargaining unit
agreement." Complainant contends that a make-up opportunity constitutes
a management assignment of overtime hours to an employee on a date
when there are no other employees working overtime. Complainant states
that an Manager's report reflects that "hours . . . were worked by
many employees." In support of her contentions, complainant submitted
copies of her clock rings reflecting the overtime hours she received,
and of other employees that received the same overtime opportunities on
the same dates she worked overtime.
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).
The agency properly found no breach of provision 3. The record contains
a copy of the Manager's affidavit. Therein, the Manager stated that he
printed the TAC Reports from January 24, 2003 through January 1, 2004.
The Manager further stated that a review of the reports indicated that
complainant received 180.46 hours of overtime during the relevant period
"exceeding the 66 hrs of make-up O.T. hrs."
On appeal, complainant argues s that other employees received the same
overtime opportunities on the same dates she worked overtime. However,
there is no language in the instant settlement agreement that provides
for complainant to be the sole employee to receive overtime opportunities
on any given work day.
Accordingly, the Commission AFFIRMS the agency's finding of no breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
December 22, 2005
__________________
Date
1The record does not contain a copy of complainant's November 6, 2004
affidavit clarifying her breach claim; however a fair reading of the
record supports a finding that complainant's breach claim addresses the
matters discussed herein.