Donna B. Russell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 23, 2005
01a50013 (E.E.O.C. Mar. 23, 2005)

01a50013

03-23-2005

Donna B. Russell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Donna B. Russell v. United States Postal Service

01A50013

March 23, 2005

.

Donna B. Russell,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A50013

Agency No. 1A-113-0038-01

DECISION

Upon review, the Commission finds that the agency's decision not to

reinstate complainant's complaint of unlawful employment discrimination

that the parties had settled is proper. See 29 C.F.R. � 1614.504.

On July 1, 2004, the parties entered into a settlement agreement resolving

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

that:

In order to settle all claims for all damages, the Postal Service shall

temporarily assign Complainant to the Outbound Platform Operations

which include but are not limited to the 185 Operation, 181 Operation,

and Parcel Post Operation on Tour 3 (4:00 p.m. to 12:30 a.m.) with

non-scheduled days off on Sundays and Wednesdays, effective from the date

of the signing of this Agreement through July 31, 2004. Upon successful

supervisory review, the Agency shall maintain Complainant in the

temporary assignment as long as the temporary assignment remains open.

Complainant understands that on occasion she may be required to report

to duty prior to the start of her tour or stay later than the end of her

tour and on occasion she may be required to report for another assignment.

By letter dated October 25, 2004, complainant alleged that the agency

breached the settlement agreement. Specifically, complainant indicated

that on September 27, 2004, she learned that her non-scheduled days

off would be changed from Sunday and Wednesday to Tuesday and Wednesday

effective October 2, 2004.

On November 26, 2004, the agency issued its decision finding no

settlement breach. Specifically, complainant's supervisor indicated

in her affidavit that complainant was allowed to stay on her temporary

assignment with non-scheduled days off on Sundays and Wednesdays up until

October 2, 2004, which was well beyond the agreed amount of time under

the settlement agreement. The supervisor also indicated that since this

assignment left Tour 3 with only two supervisors and it caused staffing

problems and overtime. The supervisor also stated that they had to have

other supervisors change their schedules in an effort to help reduce

the overtime usage on Tour 3.

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). Although the Commission is not

generally concerned with the adequacy or fairness of the consideration in

a settlement agreement as long as some legal detriment is incurred as part

of the bargain, when one of the parties to a settlement incurs no legal

detriment, the agreement will be set aside for lack of consideration.

See Morita v. Department of the Air Force, EEOC Request No. 05960450

(December 12, 1997).

The settlement agreement specifically provided that complainant would

be assigned to her temporary assignment under provision 1 until July

31, 2004. Thus, when this assignment ended on October 2, 2004, which

was beyond July 31, 2004, the Commission finds that the agency did not

breach the settlement agreement. Furthermore, complainant does not argue

that this temporary assignment remained open. In fact, complainant's

supervisor stated that this temporary assignment caused staffing problems

and overtime in Tour 3.

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

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

March 23, 2005

__________________

Date