01A43572_r
11-18-2004
Wanda C. Threatt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wanda C. Threatt v. United States Postal Service
01A43572
November 18, 2004
.
Wanda C. Threatt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43572
Agency No. 4C-280-0152-03
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated March 30, 2004, finding that it was in compliance
with the terms of the June 25, 2003 settlement agreement into which the
parties entered.
The settlement agreement provided, in pertinent part, that:
(1) [S1] will provide time records to [complainant] every Saturday.
For this Saturday, 6/28/03, [S2] will provide the time records. Both will
jointly send CA7 to workers comp.
(2) [S1] will write a letter stating that due to miscommunication,
the Postal Service failed to pay [complainant] in a timely manner.
[Complainant] will be able to use this letter with her creditors.
(3) [S1] will provide [complainant] with PS Forms CA17 prior to scheduled
appointments.
(4) Any discussions regarding overtime will be held outside of earshot
of other employees.
[S1] will inform [complainant] of all service talks, in person if
possible or in writing.
[S1] will investigate [complainant's] record and correct any absences
that should be in regard to her limited duty.
[Complainant], for purposes of limited duty, is approved to arrive at
7 AM on Saturdays. PS Form 3189 will be filled out.
[Complainant] agrees to remind [S1] of any paperwork she needs.
By letter to the agency dated June 28, 2003, complainant 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 supervisor failed to provide her with her time records
on June 28, 2003. Complainant further alleged that her time and pay
records are still incorrect. Complainant alleged that she has been
denied time to take physical therapy and when she requested a change of
schedule to accommodate her physical therapy appointments, her request
was also denied. Complainant states that on June 30, 2003, S1 did not
inform her about a service talk in person or in writing. Moreover,
complainant stated that she was left out of clerk meetings wherein S1
would blame problems on her. Complainant claimed that S1 also refused
to sign her paperwork that would have permitted her to be paid during
her leave of absence and refused to give her her time analysis. Lastly,
complainant alleged that S1 disapproved her PS Form 3971s.
In its March 30, 2004 decision, the agency concluded that no breach of
the settlement agreement has occurred. The agency found that complainant
was provided with her time records from June 28, 2003 on the following
Monday by S1 (provision 1). S2 had not been informed of the agreement
reached just three days before, and so S2 did not know the agency had
agreed to provide the records to complainant. Complainant, the agency
found, acknowledged that she had received the records the following
Monday from S1. The agency further found that S1 had corrected all of
complainant's time and attendance records as agreed in the settlement
agreement (provision 6). With respect to provision 3, S1 stated that
he provided complainant with enough forms to last through the beginning
of 2004. S1 further explained that he did not agree to approve all
of her requests for physical therapy, only to provide her with the PS
Forms CA-17 (which he claims he did provide her). The agency further
found that S1 only held one service talk from the date the settlement
agreement was signed until S1 was reassigned in September 2003, and
that complainant had received a written copy of that service talk.
Regarding provision 8, S1 explained that frequently complainant would
schedule her physical therapy appointments for the first part of her
duty hours and would then call in sick for the remainder of her shift.
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 the agency has substantially complied
with the plain language of the settlement agreement of June 25, 2003.
Complainant acknowledges that she received her time records for June
28, 2003, although S1 gave them to her instead of S2. We find nothing
in the settlement agreement indicates that complainant will be paid
any additional sums, only that the agency agrees to investigate her
time/attendance/leave records and to correct any absences that are
connected with her limited duty. Further, we find that the agency is
correct in determining that the agreement does not require the agency to
approve all of complainant's requests for physical therapy appointments
or to approve all PS Forms 3189 that complainant submits. We find the
plain language of the agreement clarifies complainant's duty hours and
requires the forms to be completed. We further find that complainant
has not shown that S1 held any additional service talks that complainant
did not attend or receive in writing. Nothing in the agreement requires
the agency to notify complainant of all clerk meetings.
We therefore find that complainant has not shown that the agency failed
to comply with the terms of the June 25, 2003 settlement agreement.
Accordingly, we AFFIRM the agency's determination that no breach of the
settlement agreement occurred.
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
November 18, 2004
__________________
Date