Clara S. Arpaia, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 13, 1999
01982472 (E.E.O.C. Apr. 13, 1999)

01982472

04-13-1999

Clara S. Arpaia, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Clara S. Arpaia v. United States Postal Service

01982472

April 13, 1999

Clara S. Arpaia, )

Appellant, )

)

v. ) Appeal No. 01982472

) Agency No. 1-J-1281-92

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

INTRODUCTION

Appellant timely appealed the agency's final decision not to reinstate

her complaint of unlawful employment discrimination that the parties

had settled. See 29 C.F.R. ��1614.504, .402(a); EEOC Order No. 960,

as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency breached a settlement

agreement.

BACKGROUND

The record indicates that appellant filed a formal complaint dated May

1, 1992, alleging discrimination when she was not trained as an Acting

Supervisor. Thereafter, on October 13, 1993, the parties settled the

complaint. The settlement agreement provided, in pertinent part, that

appellant, a Contract Technician, would be given priority consideration

if the position of Contract Technician is upgraded to an EAS position;

and if it is not upgraded, she would be given priority consideration

for a supervisory position if the subject position was created in this

"area of Procurement."

In a letter dated August 1, 1997, appellant indicated that at the time of

the settlement agreement, she did not know that Procurement was eliminated

from the agency's matrix in 1992. Despite this, stated appellant, the

agency still had purchasing or other stockroom positions which could

be classified as being in the area of Procurement; and she asked for

clarification of the definition of "Procurement" under the terms of the

settlement agreement. Appellant also requested the agency's compliance

with the terms of the settlement agreement in that on or about July 15,

1997, she applied but was not interviewed for a Purchasing Specialist,

EAS-17 position in the agency Northeast Area Office. Appellant also

indicated that in 1994, a male employee was placed into the position

of Manager of Maintenance Operations, and during the past four years,

she might have been bypassed for other management positions depending

on the definition of "Procurement."

On February 28, 1998, the agency issued its decision finding no breach.

The agency stated that Procurement was changed as a result of its

restructuring during 1992/93, but only in name and the way business

was done. The agency stated that settlements were binding on the

installation where they were made and were not all inclusive to cover

the entire Performance Cluster, the Northeast Area, or the entire

Postal Service. The agency indicated that the settlement agreement

only applied to appellant's former workplace, the New Haven Post Office,

at the time of the settlement agreement and her present workplace, the

Southern Connecticut Processing & Distribution Center. The agency stated

that since appellant had not been denied consideration for a supervisory

position in those workplaces, it did not breach the settlement agreement.

On appeal, appellant, through her attorney, contends that the settlement

agreement should be set aside due to impossibility of performance.

Specifically, appellant argues that since Procurement was eliminated

from the matrix in 1992, prior to the settlement agreement, appellant

could not be afforded the opportunity to be given priority consideration

if a supervisory position is created in the area of Procurement.

ANALYSIS AND FINDINGS

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 appellant 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.

We find no settlement breach in the instant case. Upon review of the

settlement agreement, we find that it does not provide for a specific

time period during which the agency was obligated to give appellant

priority consideration. The Commission has held that, where a complainant

bargained for a specific job offer which did not include terms related

to the length of service, the conditions of termination or transfer, or

many other elements of the employment relationship which could have been

agreed upon, it would be improper to interpret the reasonable intentions

of the parties as requiring the agency to employ the complainant in

the identical job forever. See Parker v. Department of Defense, EEOC

Request No. 05910576 (August 30, 1991). The Commission further stated

that, in that situation, the complainant's transfer two years after

the settlement agreement, did not contravene the clear terms of the

settlement agreement. Id. In the present case, appellant alleged

that she was not given priority consideration on or about July 15,

1997, which was approximately 4 years after the settlement agreement.

Under the circumstances before us, we find that the denial of the subject

priority consideration did not constitute a breach of the settlement

agreement since it occurred beyond the reasonable time period during which

the agency was contractually obligated to give appellant such priority

consideration. Furthermore, with regard to the alleged denial of priority

consideration in 1994, and during the past four years, appellant failed

to raise these in a timely manner and/or to indicate specific positions

for which she was denied priority consideration. Based on the foregoing,

we find that the agency has not breached the settlement agreement.

CONCLUSION

Accordingly, the agency's decision finding no breach of the settlement

agreement is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

April 13, 1999

____________________

Date Ronnie Blumenthal, Director

Office of Federal Operations