0120112172
02-03-2012
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. 0120112172
Agency No. 1H351001111
DECISION
Complainant filed a timely appeal with this Commission from a final
determination by the Agency dated February 10, 2011, finding that it was
in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Expeditor at the Agency’s Processing & Distribution facility
in Huntsville, Alabama. Believing that the Agency subjected her to
unlawful discrimination, Complainant contacted an Agency EEO Counselor
to initiate the EEO complaint process. On December 16, 2010, Complainant
and the Agency entered into a settlement agreement to resolve the matter.
The settlement agreement provided, in pertinent part, that:
(1) Management will provide to Complainant an Overtime Updated
Tracking Sheet for the months of October, November and December 2010 for
the Tour 1 Manual Section. Management will provide the Overtime Updated
Tracking Sheet by January 13, 2011. After this has been accomplished,
[the Plant Manager(PM)], along with Complainant and her representative,
Mr. Alvin Hall, will meet and discuss the Overtime Tracking Sheet,
and if there are any discrepancies as determined by Management, then
Management specifically PM will determine if a remedy will be offered.
By letter to the Agency dated January 28, 2011, 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 Agency failed to provide her with a complete copy of the
December tracking sheet by January 13, 2011 and that none of the copies of
the tracking sheets for October and November were corrected. Complainant
further alleged that no meeting was held with herself, her representative,
and PM.
In its February 10, 2011 response to the alleged breach, the Agency
concluded it was in compliance with the agreement. Specifically,
the Agency found that, on January 5, 2011, via delivery confirmation,
Complainant was provided with updated Overtime Tracking Sheets for
October, November, and December of 2010. In addition, the Agency found
that PM told Complainant at the Redress mediation that she could ask to
see PM anytime on or after January 13, 2011 to discuss the documents.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that PM’s Affidavit Testimony was
incorrect, and that she was never told to ask to see PM any time on or
after the stipulated date. Complainant further argues that she still
did not receive a full copy of the December tracking sheet and that when
she went over the tracking sheets with her Shop Steward they found that
she had been bypassed for 64 hours of overtime. Complainant maintains
that corrected time sheets would reveal such a discrepancy. The Agency
did not submit any statement on appeal in this matter.
ANALYSIS
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 (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. Dep’t 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. U.S. Postal Serv.,
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 settlement breach cases, the burden is always placed on the party
alleging breach to establish that a breach has occurred. See Porter
v. United States Postal Service, EEOC Appeal NO. 01A54699 (December
20, 2005).
Failure to perform in accordance with deadlines specified in a contract
does not necessarily constitute a breach of contract. Time is not
ordinarily of the essence in a contract unless made so by express
stipulation or unless there is something connected with the purpose
of the contract and the circumstances surrounding it which makes it
apparent that the contracting parties intended that the contract must be
performed at or within the time named. Garzino v. Department of the Army,
EEOC Appeal No. 0120072847 (Sept. 27, 2007). Failure to satisfy a time
frame specified in a settlement agreement does not prevent a finding
of substantial compliance, especially when all required actions were
subsequently completed, and the Complainant has not shown that she was
harmed by the delay. Lazarte v. Department of the Interior, EEOC Appeal
No. 01954274 (April 25, 1996).
Following a review of the record, we find that the Agency has not
performed in accordance with the deadlines specified in the agreement.
The Agency states that it was not in breach for it provided the agreed
upon documents to Complainant on January 5, 2011 prior to the stipulated
date. However, the record shows PM did not provide Complainant the
documents per the settlement agreement when he failed to submit the
complete month of December, submitting the first 20 days of December. The
Agency had time to remedy, and substantially comply with the agreement,
by providing the last 11 days of December in a reasonable time, but the
required actions were not subsequently completed. The updated copies
of October, November, and December to be provided to the complainant
were conditions to be met in order for Complainant, her representative
and PM to meet and discuss potential discrepancies. For these reasons
we find that the Agency’s lack of performance constituted a breach.
To remedy a finding of breach, the Commission may order reinstatement
of underlying complain, or enforcement of the agreement’s terms. See
29 C.F.R. § 1614.504(c). In this case, Complainant has stated that
she seeks reinstatement of her complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we VACATE the
Agency’s finding of no settlement breach and REMAND this matter to
the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency shall resume the processing of the Complainant's EEO claims
from the point processing ceased pursuant to 29 C.F.R. Part 1614.
Within 30 days of the date this decision becomes final, the Agency shall
notify Complainant in writing that it has reinstated his EEO claims.
The Agency must provide a copy of this notice to the Compliance Officer
as referenced herein.
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), 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
February 3, 2012
__________________
Date
2
0120112172
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112172