01A15223_r
01-18-2002
Alicia M. Silva, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alicia M. Silva v. United States Postal Service
01A15223
January 18, 2002
.
Alicia M. Silva,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A15223
Agency No. 4-H-335-0212-01
DECISION
Complainant appeals to the Commission for a determination as to whether
the agency has complied with the terms of the settlement agreement,
pursuant to 29 C.F.R. � 1614.504(b). The parties resolved complainant's
complaints by entering into a settlement agreement on June 28, 2001, which
provided, in pertinent part, that complainant would receive the following:
Letters of warnings dated 03-12-97; and 11-4-99; notice of suspensions
dated 3-3-00; 12-29-2000. Will be recinded [sic] and removed from the
[complainant's] files [sic].
All adverse paperwork contained in the complainant's files/OPF any file
will be removed and never [c]ited again including the Letter date 2-9-2
. . . [illegible date] [sic]
The complianant's [sic] flma [sic] requests will be processed in
accordance with the flma [sic] guidelines.
The Compliantant [sic] will be transfered [sic] as a PTF the
. . . [illegible] . . . in October to the Englewood post office.
The attorney's fee/bill will be submited [sic] to the manager of EEO
and the manager will submit the bill to the area for their negotiation
with the attorney of record. Mr. [X] [sic] is asking for 10,950 with
the understanding that he will be negotiating this bill with the legal
department of the postal service for their approval. It is understood
by the parties that is [sic] not an agreement on the legal fees. It is
for purpose of information only [sic].
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased. The agency shall resolve the matter and
respond to the complainant, in writing. If the agency has not responded
to the complainant, in writing, or if the complainant is not satisfied
with the agency's attempt to resolve the matter, the complainant may
appeal to the Commission for a determination as to whether the agency
has complied with the terms of the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
By letter dated June 28, 2001, complainant provided the agency with an
itemized list of attorney's fees totaling $9,950.00. By letter dated
August 9, 2001, complainant may have attempted to allege that the agency
breached the provision of the settlement agreement regarding payment of
attorney's fees. There is no decision in the record from the agency on
the breach claim. Complainant filed the instant appeal on September 7,
2001 alleging that the agency breached the attorney's fees provision of
the settlement agreement. Complainant argues that the agency agreed
to pay $3,750.00 in attorney's fees leaving a balance of $6,200.00 in
unpaid attorney's fees.
Provision 5 of the settlement agreement specifically states that legal
fees are not intended to be part of the agreement. However, assuming
arguendo, that complainant is entitled to attorney's fees under the
agreement, complainant has not shown breach. Provision 5 states that
the legal fees should be submitted and will be negotiated by the legal
department for approval. Complainant submitted the bill, and the legal
department offered $3,750.00, after negotiation. Therefore, complainant
has failed to show that the agency breached provision 5 of the settlement
agreement. Complainant has failed to show that the agency breached any
other provision of the settlement agreement.
Therefore, the Commission finds that complainant has failed to show that
the agency breached the settlement agreement.
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
January 18, 2002
__________________
Date