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