LeVern M. Mitchell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 27, 2006
01A61496 (E.E.O.C. Sep. 27, 2006)

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maintained that a grievance on the separation was withdrawn, resulting in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.