01A12808_r
12-05-2001
Kathy M. Green-Clark, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathy M. Green-Clark v. United States Postal Service
01A12808
December 5, 2001
.
Kathy M. Green-Clark,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12808
Agency No. 4-F-900-0136-00
DECISION
Complainant appealed to this Commission from the agency's March 19, 2001
decision finding no breach of the terms of a June 30, 2000 settlement
agreement into which the parties entered. On appeal, complainant argues
that it took more than three months for her reinstatement to take place,
and that many people were hired prior to her.
The settlement agreement provided, in pertinent part, that:
(1) Upon [complainant's] presentation of medical clearance, she will
be given first consideration over any other pending applicants for
reinstatement provided that she meets full qualifications for the
assignment in question.
(2) [Complainant] agrees that she will seek medical clearance and present
that clearance to the [agency] medical unit as soon as possible after
she completes her pregnancy and recovery period.
(3) [Complainant] will seek reinstatement as soon as she is cleared by
the [agency] medical unit.
(4) [The agency] agrees that, upon reinstatement and completion of a 90
day probationary period, [complainant's] seniority will revert to its
status as of April 22, 2000.
By letter dated October 25, 2000, complainant alleged breach of the
settlement agreement and requested implementation of its terms. She
requested that the agency reinstate her with a seniority date of September
30, 1981. In its final decision, the agency found no unnecessary delay
in the processing of complainant's request for reinstatement. The agency
explained that complainant's �hiring package� was received September 19,
2000. After her supervisor's evaluation was received October 17, 2000,
her application was forwarded to the selecting official. Complainant then
was scheduled for a physical December 11, and hired December 16, 2000,
less than three months after receiving complainant's application package.
Any settlement agreement knowingly and voluntarily agreed to by the
parties, reached at any stage of the complaint process, is binding on both
parties. See 29 C.F.R. � 1614.504(a). 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 parties' intent as
expressed in the contract, not some unexpressed intention, 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 generally has 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 instant case, complainant admits that she was reinstated
approximately three months after applying as required in the settlement
agreement. The settlement agreement does not provide any specific date
by which the agency must reinstate complainant. When a settlement
agreement does not provide a specific time period for the agency to
execute its terms, the Commission requires the agency to act within a
�reasonable� amount of time. See Gomez v. Department of the Treasury,
EEOC Request No. 05930921 (February 10, 1994); Parker v. Department of
Defense, EEOC Request No. 05910576 (August 29, 1991). The Commission
finds that reinstatement within three months is reasonable.
Complainant also argues that others were hired before she was considered
for reinstatement. The agency failed to address this contention in its
decision, or on appeal. Without further information in the record,
the Commission cannot determine whether complainant received �first
consideration� for reinstatement as required by the settlement agreement.
Therefore, the agency must perform a supplemental investigation on remand.
CONCLUSION
Accordingly, the agency's decision is VACATED, and the claim of breach
is REMANDED for a supplemental investigation as provided below.
ORDER
The agency must obtain all relevant documents, correspondence,
and applications for reinstatement of any and all other individuals
considered for reinstatement from the date the settlement agreement
was signed (June 30, 2000) until the date complainant was reinstated
(December 16, 2000). Further, the agency shall provide the date of
re-employment of all employees reinstated between June 30 and December
16, 2000. If no one was reinstated during the time period referenced
above, the agency shall provide affidavits attesting to this fact from
agency officials with knowledge of this information. Within 30 days of
the date this decision becomes final the agency shall reissue a decision
addressing whether the agency breached the portion of provision (1)
of the settlement agreement requiring the agency to provide complainant
with �first consideration� for reinstatement. The agency shall send a
copy of the decision to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
December 5, 2001
__________________
Date