01a51653
04-29-2005
Danean Hammer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Danean Hammer v. United States Postal Service
01A51653
April 29, 2005
.
Danean Hammer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51653
Agency No. 1F-853-0020-04
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 3, 2004, finding that it
was in compliance with the terms of the February 11, 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) The Tour 3 Automation Supervisory Staff will receive sensitivity
training by the end of the fiscal year (2004);
(2) Complainant will obtain medical clearance from her physician, and
clear the medical unit, prior to returning to duty;
(3) The letter of removal dated January 4, 2002, will be modified to
a seven-day, time served suspension with a ten month retention period,
to be reviewed the week of June 12 through June 19, 2004.
By letter to the agency dated October 6, 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 provide sensitivity training to the
Tour 3 supervisory staff and failed to remove information regarding the
unsafe act involving damage to postal property which resulted in the
letter of removal.
In its November 3, 2004 Letter of Determination, the agency concluded
that the agency did not breach the settlement agreement. The agency
found that the Tour 3 supervisory staff received the following courses
in FY 2004: Diversity & Workplace Environment Issues, Communicating
Non-Defensively, Creating a Positive Workplace, Basic Mediation Skills,
and Dealing with Conflict. In addition, the agency reviewed complainant's
Official Personnel Folder and noted that discipline related to the unsafe
act were removed from her files. The agency noted that a physician was
given information regarding the unsafe act, there was no indication of
any disciplinary action.
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 O v. United States 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 the instant case, complainant claims that the agency failed to
provide �sensitivity training.� We find that provision 1 is too vague
to enforce. In addition, the agency provided a letter from the EEO
Manager who personally reviewed complainant's Personnel file to confirm
that the discipline was removed. Accordingly, we find that the agency's
decision finding no breach of the settlement agreement was appropriate
and should be AFFIRMED.
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 29, 2005
__________________
Date