0120051789
04-24-2007
Arleen F. McCusty, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arleen F. McCusty,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200517891
Agency No. 4C450009004
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 1, 2004, finding that it was
in compliance with the terms of the July 20, 2004 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.
The settlement agreement provided, in pertinent part, that:
(1) [Complainant's] desk shall be relocated to the break area;
(2) Change of schedule requests shall be submitted on a weekly basis;
management shall fill out forms and [complainant] shall sign or initial
said forms. This shall not be construed as a past practice.
(3) Management shall post all EEO, OSHA, etc current telephone
numbers in their appropriate places;
(4) Management shall instruct all employees on the proper way to
answer the telephones; instructions shall take place the week of August
30th, 2004;
(5) All parties to treat each other with respect;
(6) Management shall not discuss [complainant's] person, personel
(sic), medical information with anyone except [complainant];
(7) Management shall investigate as to payment of medical doctor's
assessment of [complainant's] limited duty job offer; any and all medical
information to be sent to appropriate person only. If permitted from
said assessment [complainant] shall drive express mail (no longer that
45 min without a 15 min break) and will walk to bank. These shall be
conducted during safe weather conditions.
(8) In the event management and/or [complainant] feels the need for a
"closed door meeting" each participant shall be entitled to have a witness
of their choice present, and any agreement resulting from said meeting
shall be in writing, with each person present signing and receiving a
copy of said agreement.
By letter to the agency dated August 5, 2004, 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 comply with provisions #1,3,5,6, 7 and
8 of the settlement agreement. Complainant said that after two weeks,
her desk had not been moved, the telephone numbers were not posted,
she was not treated with respect, management told another person about
the limited duty assignment which complainant received, there was no
investigation of payment to her doctor nor a limited duty job offer and
she had to ask for the witness of her choice at a meeting
In its December 1, 2004 FAD, the agency concluded that it was not in
breach of the settlement agreement. The agency noted that after the
agreement was signed, complainant went on extended leave and when she
returned she was in the process of being reassigned to a new location.
The agency also stated that complainant was advised she could move to
the lobby, that new telephone numbers are posted and that no medical
assessments were made that required payment of medical expenses. The
agency noted that information about complainant's status was given by
the union.
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, in her appeal, complainant states that she was on
leave for 28 working days following mediation of her complaint. The
Commission notes that complainant alleged the agreement was breached
within two weeks of having signed it. Complainant admitted that she
was verbally told that she could move to the lobby. In any event, she
was reassigned to a limited duty position in a different facility for
which she signed on August 18, 2004. Further. complainant admitted
that she got the representative that she wanted at the meeting, and
that the telephone numbers were updated, albeit not until after she was
reassigned. In her appeal, complainant does not complain about the failure
to pay medical expenses, rather she states that someone (TL - a management
official - identified by complainant as "the postmaster's boss") came to
discuss a different job with her. Complainant apparently alleges that TL
inappropriately learned about her limited job offer. Given TL's position,
the Commission is not convinced that it was inappropriate for her to
know about the job offer. To the extent that complainant is alleging
she was not treated with respect and was harassed, such claims should
be addressed in a new complaint no within the content of a settlement
breach.
CONCLUSION
The Commission finds that the agency has complied with 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
April 24, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120051789
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120051789