01A61496
09-27-2006
LeVern M. Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
LeVern M. Mitchell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61496
Agency No. 1F901007201
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 1, 2005, finding that it was in
compliance with the terms of the July 24, 2002 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 (the Agreement) provided, in pertinent part, that:
A. The Complainant will be granted the recession of the Notice of
Removal, dated May 17, 2001. The letter will no longer be a part
of any administrative package lodged against her. The Complainant
will report to the Medical Unit upon receiving a release to return
to full duty from her attending medical Physician.
B. Upon the Complainant's return to full duty[,] she will be referred
for vocational rehabilitation services for placement in a job.
By letter to the agency dated September 21, 2005, complainant alleged that
the agency was in breach of the Agreement. Specifically, complainant
alleged that she received a letter from the Personnel Unit on August 25,
2005, stating that she had been terminated without notice. She also stated
that she had not received a release from her Physician to return to full
duty, as required by provision A of the agreement.
In its December 1, 2005 FAD, the agency concluded that it had not breached
the Agreement. First, it noted that complainant had not complied with the
terms of the Agreement to the extent she had not submitted a release from
her Physician. It then explained that complainant's "chart" experienced no
activity since 1999, and she had been on periodic rolls in a Leave Without
Pay (LWOP) status for over a year, which under the Employee Labor Relations
Manual, Section 365.342(a), allowed for her separation. Finally, it
maintained that a grievance on the separation was withdrawn, resulting in
the matter being considered "fully adjudicated."
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 present case, we find that the agency did not breach the terms of
the Agreement. The record reflects that, in compliance with provision A of
the Agreement, the May 17, 2001 Notice of Removal was no longer part of
complainant's administrative package. Moreover, the agency waited for over
a year for complainant to return to the Medical Unit with a full release
from her Physician as required by said provision, but she remained unable
to do so. Complainant explains that she could not comply with this
provision because she had not been released by her Physician. We find,
however, that the agency reasonably reviewed complainant's employment
status every year in accordance with the Employee Labor Relations Manual,
Section 365.342(a). Only upon finding that complainant had been on LWOP
for over a year did the agency issue a second Notice of Separation on
August 22, 2003, and the agency appears to have separated complainant
sometime on or about August 2005.[1] Based upon the foregoing, we
determine that the agency reasonably reviewed complainant's employment
status after more than one year passed and complainant had not provided a
medical release. Moreover, we find that the Agreement did not require the
agency to keep her on the rolls in LWOP status indefinitely.
The Commission concludes that the agency has complied with the terms of the
settlement agreement. For the aforesaid reasons, the agency's decision,
finding no breach of the July 24, 2002 settlement agreement, is hereby
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
_____9-27-06_____________
Date
-----------------------
[1] The August 22, 2003 Notice was pending due to a grievance filed by the
Union, and when the grievance was withdrawn, the agency considered the
matter fully adjudicated.