01A35103_r
02-19-2004
Tamie K. Rain, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tamie K. Rain v. United States Postal Service
01A35103
February 19, 2004
.
Tamie K. Rain,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35103 Agency No. 1C-171-1041-95
Hearing
No. 170-96-8450X
DECISION
The record reveals that on August 11, 1997, complainant and the agency
entered into a settlement agreement regarding complainant's EEO complaint.
The settlement provided, in pertinent part, as follows:
1. Complainant will submit a written request for permanent reassignment
to light duty to Harrisburg Plant Manager, [Plant Manager], in accordance
with the requirements set forth in Article 13 of the national agreement
(at page 75).
2. It is understood that, as long as complainant follows the procedures
set forth in Article 13, referenced above, her request will be approved
by Plant Manager.... Complainant will be assigned to perform her
current duties. The schedule will be 7:00 a.m. - 3:30 p.m. with a half
hour lunch. Non-scheduled days will be Friday and Saturday as approved
by Plant Manager.
3. Complainant will be required to provide updated medical documentation
no less frequently than each January and July.
4. Complainant, by virtue of her approved request for permanent
reassignment, hereby relinquishes her present bid position as of the
date her light duty assignment becomes effective.
By letter dated March 19, 2002, the agency informed complainant that due
to several operational changes on tour 2, she would become excess to the
needs of her section. Complainant was informed that as a junior full-time
employee within the section, she would become an unassigned regular
and involuntarily reassigned effective April 5, 2002. Subsequently,
complainant claimed that the agency had breached the settlement agreement
when, effective May 11, 2002, her scheduled reporting time was changed
from 7:00 a.m. to 3:00 p.m.
In a previous decision, Tamie K. Rain v. United States Postal Service,
EEOC Appeal No. 01A24266 (June 26, 2003), the Commission found that the
agency had notice of complainant's breach claim and remanded this matter
to the agency for an investigation of complainant's breach claim.
By agency decision dated July 28, 2003, the agency determined that it
had not breached the settlement agreement. According to the agency,
a reduction in staffing on tour 2 and increased staffing on tour 3 were
necessary due to declining mail volumes in manual operations and the need
to improve efficiency in automated and mechanized work areas. The agency
stated that when a reduction in staffing occurs on a tour, the collective
bargaining agreement must be followed. According to the agency, Article
12, Section 5 of the collective bargaining agreement's Principles of
Seniority, Posting and Reassignments, requires that employees excess to
the needs of their section be moved by seniority and level. The agency
stated that complainant lacked sufficient seniority to attain a position
for either a 7:00 a.m. or 12:00 p.m. manual position and therefore
her position was abolished and she was assigned to a 3:00 p.m. start
time on tour 3. The agency concluded that the Rehabilitation Act does
not require that complainant be provided a position that is in direct
contravention of the collective bargaining agreement.
On appeal, complainant contends that the application of the collective
bargaining agreement is not an appropriate reason for removing her
reasonable accommodation.
In response, the agency asserts that complainant held the job provided
under the settlement agreement for almost three years. The agency
maintains that it has substantially complied with the settlement
agreement. According to the agency, it cannot maintain complainant in
her previous position because to do so would violate the collective
bargaining agreement. The agency states that neither party knew at
the time the settlement agreement was executed that changes would
occur necessitating complainant's reassignment. The agency notes that
complainant was informed by the Plant Manager that as positions become
vacant on tour 2, they would be posted and eventually complainant will
regain a tour 2 position based on her seniority.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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 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, 381 (5th Cir. 1984).
In the instant case, we find that the agency has not breached the
settlement agreement. The Commission has held that where an individual
bargains for a position without any specific terms as to the length of
service, it would be improper to interpret the reasonable intentions of
the parties to include employment in that exact position ad infinitum.
See Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Parker v. Department of Defense, EEOC Request
No. 05910576 (August 30, 1991). In the instant case, we find that the
agency did not breach the settlement agreement by reassigning complainant
to tour 3 due to business necessity after complainant had held the
position provided for in the settlement agreement for approximately
three years. The agency has established that its operational needs and
the application of the collective bargaining agreement necessitated the
reassignment of complainant from tour 2 to tour 3. We find that the
agency substantially complied with the settlement agreement by providing
complainant with a light duty assignment on tour 2 for almost three years.
Accordingly, the agency's decision finding that it did not breach the
settlement agreement was proper and 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
February 19, 2004
__________________
Date