Lynne P. Jones, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 22, 2005
01a52666 (E.E.O.C. Sep. 22, 2005)

01a52666

09-22-2005

Lynne P. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Lynne P. Jones v. United States Postal Service

01A52666

September 22, 2005

.

Lynne P. Jones,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A52666

Agency No. 4J-604-0009-04

Hearing No. 210-2004-00326X

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated January 21, 2005, finding that it

was in compliance with the terms of the October 12, 2004 settlement

agreement into which the parties entered. See 29 C.F.R. Sec. 1614.402;

29 C.F.R. Sec. 1614.504(b); and 29 C.F.R. Sec. 1614.405.

The settlement agreement provided, in pertinent part, that:

(2) The parties expressly agree to the following:

Complainant will provide the USPS a completed PS Form 2574, Resignation

from the Postal Service, stating �personal reasons� as her reason for

resignation, effctive date of resignation October 24, 2003. The USPS

will generate a new PS Form 50 changing her termination to resignation,

which will be placed in her Official Personnel File (OPF); and

(b) The USPS will re-instate Complainant's positions on the eligibility

registers

for Mail Handler and Clerk for the South Suburban Processing and

Distribution Center (�P&DC) through November 1, 2006, and the Chicago

Heights facility through May, 2005. Complainant's eligibility is subject

to the regulations, practices, policies and procedures of the USPS.

The USPS does not guarantee Complainant that she will be called from

the register or that the entire register will not be cancelled.

By letter to the agency dated December 6, 2004, complainant alleged that

the agency was in breach of the settlement agreement, and requested

that the agency specifically implement its terms. Specifically,

complainant alleged that the agency failed to comply with provision 2(b).

Complainant, through her representative, alleged that provision 2(b)

was understood to mean that she would be restored back to all registers

she was on prior to leaving the casual position and being hired as a

career employee. This was to include the Letter Carrier register that

complainant was on prior to her resignation, not just the Clerk and Mail

Handler registers.

In its January 21, 2005 FAD, the agency concluded that they had not

breached the settlement agreement. The agency found that including

complainant on the Letter Carrier register was not part of the

settlement. The agency reasoned that mail handlers and letter carriers

are represented by different unions and are on separate registers,

and the agreement only referred to Clerk and Mail Handler registers.

Complainant has been restored to the agreement's specified registers.

Thus, the agency held that management was in compliance with the terms

of the settlement agreement.

EEOC Regulation 29 C.F.R. Sec. 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 terms of the agreement are clear and unambiguous.

The plain language of the agreement states that complainant be re-instated

on �eligibility registers for Mail Handler and Clerk.� The canon of

construction expressio unius exclusio alterius (expressing one item of

an associated group excludes another left unmentioned) applies here.

By leaving it unmentioned, the agreement does not require complainant

to be re-instated on the Letter Carrier register. It is undisputed

that complainant was restored on the Mail Handler and Clerk registers.

Thus, the Commission finds that the agency did not breach the terms of

the settlement agreement.

CONCLUSION

It is the opinion of the Commission that the agency did not breach the

October 12, 20041, settlement agreement entered into on October 12, 2004.

Thus, the final agency 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. Sec. 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. Sec. 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. Sec. 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. Sec. 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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 22, 2005

__________________

Date