01a53755
10-05-2005
Elaina Depperman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elaina Depperman v. United States Postal Service
01A53755
October 5, 2005
.
Elaina Depperman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53755
Agency No. 1A-102-0011-05
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 23, 2004,<1> finding that it
was in compliance with the terms of the February 11, 2005 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:
[Committee Member], a member of the ASP Review Committee, on 2/14/04,<2>
will amend the wording of the reason given for [complainant]'s suitability
disqualification as stated in the 12/16/04 letter to her from the
chairperson of the ASP Review Committee, [Chairwoman]. The change is
as follows:
�The Review of your records revealed that you incurred an industrial
injury on the job June 7, 2004, but did not immediately report this
injury. You reported this injury to your supervisor on or about 9/14/04.
This is evidenced on PS 1769.�
By letter to the agency dated February 17, 2005, complainant alleged that
the agency was in breach of the settlement agreement and requested that
the agency reinstate her complaint from the point processing ceased.
Specifically, complainant alleged that Committee Member failed to
indicate in the February 14, 2005 letter that the February 14, 2005
letter was amending the December 16, 2004 letter and that the reason
given for complainant's suitability disqualification in the December 16,
2004 letter was no longer valid.
In its March 23, 2005 FAD, the agency concluded that it did not breach
the settlement agreement.
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 O 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 instant case, the record indicates that Committee Member issued a
letter on February 14, 2005 amending the reason given for complainant's
suitability disqualification in accordance with the requirements of
the February 11, 2005 settlement agreement. We note that while the
terms of the agreement require the agency to amend the reason given for
complainant's suitability disqualification, the terms do not obligate the
agency to reference, or expressly invalidate a portion of, the December
16, 2004 letter. If the complainant wanted the agency to directly
reference the December 16, 2004 letter and expressly indicate that the
February 14, 2005 letter superceded the December 16, 2004 letter, she
was free to negotiate with the agency to include this provision into the
settlement agreement. See Jenkins-Nye v. General Service Administration,
EEOC Appeal No. 01851903 (March 4, 1987). Thus, the Commission finds the
agency complied with the provisions of the February 11, 2005 settlement
agreement.
Accordingly, the agency's decision finding no breach of the settlement
agreement 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
October 5, 2005
__________________
Date
1The FAD was erroneously dated March 23, 2004. A review of the record
reveals the FAD should have been dated March 23, 2005.
2The settlement agreement required Committee Member to amend the wording
of the reason given for complainant's disqualification on February 14,
2004. However, a review of the record reveals that the date should have
been listed as February 14, 2005.