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.