01a30861
04-30-2004
Therese Dolan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Therese Dolan v. United States Postal Service
01A30861
April 30, 2004
.
Therese Dolan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30861
Agency No. 4-C-440-0144-01
DECISION
Complainant filed an appeal with this Commission concerning the agency's
compliance with the terms of an April 3, 2002 settlement agreement.
The Commission accepts the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The April 3, 2002 settlement agreement provided, in pertinent part, that:
The complainant's work-hour history for the time period in question
will be reviewed. On the dates that the complainant was scheduled for
physical therapy, if she used sick leave or annual leave, and her total
hours (including the sick leave/annual leave, and work) exceed 8 hours,
she will be compensated at the appropriate overtime rate.
By letter to the agency from complainant's representative, dated
September 21, 2002, complainant indicated that the information
necessary to undertake the above referenced action was faxed twice to
�labor relations,� but that the agency had done nothing. Further,
complainant's representative stated that he both telephoned and wrote
to the EEO Director about the agency's failure to comply with the above
provision, but received no response. On October 28, 2002, complainant's
representative wrote to the Supervisory Administrative Judge at the EEOC
Cleveland District Office, with a copy to the EEO Director, to inform
her that the agency failed to implement the above referenced provision,
and failed to respond to complainant's breach allegation.
By letter dated November 5, 2002, complainant filed the instant appeal.
Therein, she indicated that she was willing to cooperate with the agency
to assist in making the computation under the above referenced provision,
but noted that the review would have to include time rings and leave
requests, and that this information was in the possession of the agency.
Complainant further indicated that she already provided the agency with
all of the pertinent information she had, and requests the Commission
order the agency to comply with the settlement agreement.
Subsequent to complainant's appeal, the agency issued a final decision
on November 25, 2002, finding no breach. The agency indicated that
it undertook an investigation of complainant's breach allegation,
and determined that a named labor relations specialist (LRS) informed
complainant that she had to submit copies of the signed �3971's�
and provide the dates of physical therapy, in order to document the
amount of leave used, the date of use, and that it was used to attend a
physical therapy appointment. The agency determined that LRS provided
complainant's representative with this same information. The agency
indicated that LRS also contacted the responsible manager who stated
that complainant only used annual leave on one day to attend a physical
therapy appointment, but she could not recall the day. The agency
noted that LRS would undertake the action in the settlement agreement
once complainant provided the requested information. In responding to
complainant's appeal, the agency repeated its finding that it did not
breach the settlement agreement because it could not implement the above
provision without the information requested from complainant.
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 Commission determines that the above referenced provision requires
the agency to undertake a review of complainant's leave records and
reimburse her, at the overtime rate, for any time worked in excess of
8 hours per day (actual number of hours worked plus the amount of leave
used to attend a physical therapy appointment), on any day she took leave
to attend a physical therapy appointment. Although it is not included
in the provision, the record indicates that the pertinent time frame is
February 15, 2001 through December 2001.<1>
The agency avers that it cannot undertake this review on its records
alone, and requests that complainant submit copies of her �3971's�
(presumably complainant's approved leave requests), or at least the dates
of physical therapy. Complainant contends that she submitted all of the
information she has and alternatively argues that the agency's records
contain all the necessary information to conduct the review at issue.
We concur with complainant that the agency's own time and attendance
records, including the original �3971's,� for the pertinent period,
should contain sufficient information to determine whether complainant
is owed any overtime pay under the settlement agreement. Based on LRS's
statements, it does not appear that the agency attempted any review
of its own records. In this regard, we find that the above referenced
provision does not require complainant to submit any information as a
condition to the agency's fulfilling its obligation thereunder.
Accordingly, for the reasons set forth above, we REVERSE the agency's
final decision finding no breach of the settlement agreement, and we
REMAND this case to the agency with an ORDER to specifically undertake the
action(s) in the above referenced provision of the settlement agreement.
To expedite this process, we encourage complainant to provide the agency
with any pertinent leave records she has documenting her physical therapy
appointments and use of leave during the time at issue, or any other
pertinent information.
ORDER
The agency is ORDERED to take the following action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall complete its review of complainant's time and
attendance records for the period of February 15, 2001 through December
2001. For each day that complainant used leave to attend a physical
therapy appointment, where the amount of leave and actual number of hours
worked that same day total more than 8 hours, complainant is to be paid
at an overtime rate for the amount of time in excess of the 8 hours.
All pertinent document demonstrating the agency's compliance with this
order must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (R0900)
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 (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
APRIL 30, 2004
__________________
Date
1In correspondence dated May 21, 2002, complainant's representative
inquired about the status of the agency's action under the settlement
agreement. In a letter dated June 19, 2002, LRS identified the pertinent
time period as �February 15, 2001 through December 2001.� We note that
this is consistent with statements made during the investigation of the
complaint, and that neither complainant nor her representative disputed
LRS's characterization of the time frame.