01A41154_r
09-10-2004
Lydia Aponte, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lydia Aponte v. United States Postal Service
01A41154
September 10, 2004
.
Lydia Aponte,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41154
Agency Nos. 1B-061-0066-01, 1B-061-0036-00
DECISION
Complainant filed a timely appeal with this Commission from a November 18,
2003 agency decision finding that it was not in breach of the terms of the
August 23, 2001 settlement agreement into which the parties had entered.
The settlement agreement provided, in pertinent part, that:
3). [Complainant] will continue to work in pay location 117 until she
becomes a bid regular.
By letter to the agency dated November 2, 2003, complainant alleged that
the agency was in breach of paragraph 3 of the settlement agreement
and requested that the agency specifically implement the provision.
Specifically, complainant alleged that she was not a bid regular but
that she was repeatedly being moved from pay location 117 to other areas.
In its November 18, 2003 decision, the agency stated that complainant
was assigned to pay location 117, but that because complainant was a
part-time flexible employee, she could be assigned in accordance with
the needs of the operation.
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 instant case, the Commission finds that the agency did not breach
paragraph 3 of the settlement agreement. Although the settlement
agreement provides that complainant was to remain in pay location
117 until she became a bid regular, the Commission finds under the
circumstances of this case that it would be improper to interpret the
reasonable intention of the parties to have meant that complainant
would remain in pay location 117 forever, i.e., if she never became a
bid regular. See Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997)(agency complied with settlement agreement
when complainant kept in position for four years until changing his duties
through a reorganization). The only specific incident of breach cited by
complainant concerned her work assignment on November 1, 2003. Even if
complainant was assigned work outside of pay location 117 on November 1,
2003, we find that the agency's purported failure to keep complainant
in pay location 117 more than two years after the settlement agreement
was entered into does not amount to a material breach of the agreement.
Accordingly, the agency's decision finding no breach 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
September 10, 2004
__________________
Date