01a60014_r
03-31-2006
Silma V. Claudio, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Silma V. Claudio v. United States Postal Service
01A60014
March 31, 2006
.
Silma V. Claudio,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60014
Agency No. 4-A-006-0082-04
DECISION
Complainant filed a timely appeal with this Commission from an agency
final determination dated August 19, 2005, finding that it complied with
the terms of a January 4, 2005, settlement agreement. The Commission
accepts the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The January 4, 2005 settlement agreement provided, in pertinent part,
that:
The [complainant] is currently on the hiring register for 006 Mayaguez
Area (90.30 score). She will be offered full consideration for
the position of �PTF� carrier upon being notified of job interview.
During the interview process, the following will occur:
(1) [Complainant] will be afforded full opportunity to ask the interviewer
[for] any clarification [of a] question [as] necessary in Spanish
language.
(2) If need be, the interviewer will respond in both English and Spanish.
(3) [Complainant] will provide the interviewer [with] answers in English.
(4) [Complainant] will also remain on register for 009 San Juan�clerk
carrier (96.3 score) and will receive full consideration for employment
opportunity when [notified] for interview.
By letter to the agency dated May 10, 2005, and also on July 12, 2005,
complainant claimed that the agency breached the settlement agreement.
Specifically, complainant indicated that she was scheduled for a new
interview in February 2005, and then on April 15, 2005, she received
a telephone call from an agency official confirming that she was still
interested in employment. Complainant indicated that she was instructed
to initiate the physical examination process, and to complete a PS Form
2591, and provide unspecified documentation. Complainant indicates that
she was also instructed to quit her work as a �TE� clerk in anticipation
of being hired as a �PTF� and notified that she would receive window
clerk training. When complainant then heard nothing about reporting
for duty, she called the agency official, who instructed her to go back
to work as a �TE� clerk. Complainant indicated that on April 21, 2005,
she received notice that the hiring process was cancelled, and that she
would have to attend another interview before headquarters officials.
Complainant attended this interview, but received a letter dated April
30, 2005 informing her that she was not qualified for the position
of �PTF� clerk. Complainant claimed that these actions breached the
settlement agreement, and that the referenced agency official failed
to ultimately hire her as an act of retaliation for having filed an EEO
complaint against her.<1>
In its August 19, 2005 final determination, the agency noted that it
conducted an investigation regarding complainant's breach claim which
revealed that complainant received an interview on January 13, 2005
and April 21, 2005, both for the position of �PTF� clerk in San Juan.
The agency indicated that the interviews were conducted in English and
Spanish, and that complainant was given �full consideration.� The agency
noted that the April 30, 2005 letter notified complainant that she was not
selected because she lacked the English comprehension skills required
for the position. The agency also noted that complainant received
another interview on May 24, 2005, and was selected for a mail carrier
position, but that she was later disqualified due to an unsatisfactory
driving record. Based on this evidence, the agency found no breach of
the settlement agreement.
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).
The Commission determines that the settlement agreement obligates
the agency to give complainant �full consideration� when applying for
positions on the �006" register and the �009" register, and to conduct
interviews of complainant for these positions in both English and Spanish.
Complainant does not contend that the interviews she received violated the
settlement agreement. Instead, complainant contends, in essence, that she
was not given �full consideration� because on two occasions the agency
made her a job offer, which it subsequently withdrew. The first offer,
for a clerk position, was withdrawn upon a determination that complainant
did not have adequate English comprehension skills. The record reflects
that this assessment was not made during the interview process, but after
Office of Inspector General agents interrogated complainant for two to
three hours about information she provided on tax forms, and notified the
agency that she did not understand English. The second job offer, for a
carrier position, was withdrawn after the agency received documentation
showing that complainant had an unsatisfactory driving record.
In reviewing this case, we note that complainant does not deny that
she lacked adequate English language skills for the clerk position, or
that she lacked a satisfactory driving record for a carrier position.
Furthermore, given that complainant was interviewed for two positions,
and received conditional offers of employment for two positions, we
cannot conclude that she was not afforded �full consideration� in the
selection process for each. The Commission acknowledges that the
negative assessment of her English language skills did not derive from
the interview process, or even the selection process. Nonetheless, the
Commission finds that there is no evidence that the agency improperly
used this information in its determination to withdraw the job offer.
We find that the settlement agreement does not obligate the agency to
actually hire complainant. Therefore, we conclude that the agency did
not breach the settlement agreement.
Notwithstanding the above, we note that complainant also appears to
be claiming that she was not hired for positions at issue as an act
of retaliation. Given that the settlement agreement does not obligate
the agency to actually hire complainant, we find that this claim must
be viewed as concerning a subsequent act of retaliation, and treated
as a separate complaint. See 29 C.F.R. � 1614.504(c). Therefore, if
complainant wishes to further pursue this matter, she should contact an
EEO Counselor to initiate the EEO process.
Accordingly, for the reasons set forth above, we AFFIRM the agency's
final determination finding no breach of the settlement agreement.
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
March 31, 2006
__________________
Date
1Complainant appears to be making reference to the underlying EEO
complaint that was resolved by the instant settlement agreement.