Kathy M. Green-Clark, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 20, 2001
01A04533_r (E.E.O.C. Nov. 20, 2001)

01A04533_r

11-20-2001

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

01A04533

November 20, 2001

.

Kathy M. Green-Clark,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A04533

Agency No. 4-F-900-0275-97

DECISION

Complainant timely appealed from the agency's May 11, 2000 decision

finding no breach of a February 16, 2000 settlement agreement into which

the parties entered. The settlement agreement provided, in pertinent

part, that:

The Complainant shall be given first consideration over any other pending

application for reinstatement provided she meets the full qualifications,

for the assignment in question.

In her claim of breach, complainant argues that she should have been

reinstated as a regular carrier with over fourteen years of service,

not as a PTF carrier with a ninety day probationary period. In its May

11, 2000 decision, the agency found that the agreement did not include

any language concerning what job complainant would be reinstated to,

nor what credit for past years of service she would receive. On appeal,

complainant argues that the agency should not have required her to undergo

a new probationary period. She also notes that after thirty days on

the job, complainant received a termination letter on May 22, 2000.

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, the settlement agreement was silent concerning what

job complainant would receive, or whether she would have to endure a

probationary period. If complainant wished to have a specific position,

or to escape the probationary period ordinarily given to reinstatement

employees, she should have negotiated to have such requirements written

into the settlement agreement. The record reveals that complainant was

reinstated within a reasonable period of time. Further, there is no

evidence that other applicants received consideration for reinstatement

prior to complainant. Therefore, the Commission finds no breach of

the agreement.<1>

CONCLUSION

Accordingly, the agency's decision 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

November 20, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1Complainant's subsequent termination on May 22, 2000 �due to your

admission verbally that you are seven months pregnant,� is grounds for a

new claim of discrimination, but does not prove breach of the February 16,

2000 settlement agreement. Complainant raised the removal in a separate

complaint, Agency No. 4-F-900-0136-00, which settled on June 30, 2000.

Complainant has alleged breach of the June 30, 2000 agreement, currently

pending on appeal as EEOC Appeal No. 01A12808.