01980774
12-01-1999
Deborah G. Padilla, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Deborah G. Padilla v. United States Postal Service
01980774
December 1, 1999
Deborah G. Padilla, )
Complainant, )
)
v. ) Appeal No. 01980774
William J. Henderson, ) Agency No. 4E-870-1113-95
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 31, 1997, complainant filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated September 29,
1997, finding that it was in compliance with the terms of the January 8,
1997 settlement agreement into which the parties entered.<1> See 64
Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter
referred to as EEOC Regulations 29 C.F.R. ��1614.402, .504(b)); EEOC
Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
(1) When a Part-Time Flexible Carrier petition is authorized for hiring
in Gallup, [complainant] will be offered the Position with a 90 day
probationary period as specified by the National Agreement.
(2) [Complainant] will be guaranteed proper training in the Carrier
craft by an On-the-Job Trainer, or in another office.
By letter to the agency dated August 30, 1997, 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 fired her and never provided her with the proper
training in the Carrier craft by an On-the-Job Trainer, or in another
office as provided in the settlement agreement.
In its FAD dated September 29, 1997, the agency concluded that
complainant was provided with proper on-the-job training. The agency
documented complainant's training following the settlement agreement:
eight hours of drivers training, four hours of street familiarization
training, twenty-four hours of case training with a certified On-the-Job
Instructor in another office, and twenty-four hours and 43 minutes of
on-the-job training at the Gallup Post Office by an On-the-Job Trainer.
The agency also stated that complainant was fired for failure to follow
instructions.
On appeal, complainant contends that the agency breached the settlement
agreement when it refused to allow the On-the-Job Instructor (O.J.I.) from
Gallup to give her the training.
In response to complainant's appeal, the agency points out that
complainant received more training than other similarly situated
employees. The agency contends that there is a difference between a
certified On-the-Job Instructor and an On-the-Job Trainer. The agency
recognizes that an O.J.I. should be used when available, but notes that
in this case an O.J.I. was not available because he was on annual leave
for three weeks. Thus, the agency states that the supervisor took the
appropriate action by providing an On-the-Job Trainer, as specified in
the settlement agreement. Also, the agency contends it has the right to
terminate probationary period employees who cannot follow instructions.
The Commission notes that 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as 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 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 present case, the January 8, 1997 settlement agreement between
complainant and the agency required that the agency provide proper
training in the Carrier craft by an On-the-Job Trainer, or in another
office. The Commission notes that the settlement agreement does not
require the agency to provide more training for complainant than it
provides for other employees nor does it require specific training
procedures or specify a certain amount of training for complainant.
Further, the agreement does not require that a specific individual
provide complainant with on-the-job training.
The record indicates that complainant did receive training by an
On-the-Job Instructor in an outside office, as well as training by an
On-the-Job Trainer from the Gallup Post Office. Although the training
was not completed by the instructor the complainant envisioned, she did
receive the training by an On-the-Job Instructor which was given to other
similarly situated employees. Had complainant wanted a specific trainer,
she should have included such as a term in the settlement agreement.
Unexpressed intentions do not control the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). Therefore, we find that complainant failed to show
that the agency breached the settlement agreement.
Finally, we note that the issue of complainant's termination is beyond
the scope of the subject agreement. Consequently, if complainant wishes
to pursue her termination as a claim through the EEO process, she should
contact an EEO Counselor thereon.
Accordingly, the agency's determination that it did not breach the
settlement agreement was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
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. 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 (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:
December 1, 1999
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.