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