01A33766_r
09-17-2003
Belinda McIntyre, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Belinda McIntyre v. United States Postal Service
01A33766
September 17, 2003
.
Belinda McIntyre,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33766
Agency No. 4A-070-0141-00
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated June 3, 2003, finding that it was in
compliance with the terms of the June 9, 2000 settlement agreement into
which the parties entered.
The settlement agreement provided, in pertinent part, that:
Counselee shall return to work on June 12, 2000 as an unassigned regular
level PS5 employee with work hours from 3:00 a.m. to 11:30 a.m. and
having Saturdays and Sundays as her off days.
By letter to the agency dated April 10, 2003, complainant alleged that
the agency was in breach of the settlement agreement. Complainant claimed
that the settlement agreement was breached in December 2002 when her days
off were changed. She stated that she left work on January 13, 2003,
due to a heart attack and the loss of her sister due to a heart attack.
Complainant explained that she did not return to work until March 24,
2003. She claimed that she did not know she could file a claim until
April 9, 2003.
In its June 3, 2003 decision, the agency concluded that complainant failed
to file a timely breach allegation. The agency noted that complainant
became aware that she was the successful bidder for Job #12 on December
12, 2002 (hours of 3:00 a.m. to 11:30 a.m., with non scheduled days
of Sundays and Tuesdays). The agency noted that although complainant
became aware of the alleged breach on December 12, 2002, she did not
contact the EEO Office within the applicable thirty day limitation period.
Further, the agency noted that according to time and attendance records
the first date of absence subsequent to her illness was January 15,
2003, thirty-three days after she became aware of the alleged breach.
Alternatively, the agency stated that assuming her claim had been timely,
there was no language in the agreement stating that the schedule in
question was permanent. The agency stated that the posting and awarding
of bids was done in accordance with the established collective bargaining
agreement.
On appeal complainant states that she was removed from a Saturday and
Sunday rest day prior to bidding on Job Number 12. Complainant produces
a Notice dated October 21, 2002 stating that effective October 28, 2002,
her job assignment is abolished.
In response to complainant's appeal, the agency reiterates its position
that the agreement was not breached. The agency claims that complainant's
breach claim is untimely filed. The agency explains that complainant
was returned to work on June 12, 2000, as an unassigned regular level
employee with work hours from 3:00 a.m. to 11:30 a.m. with Saturdays
and Sundays as her off days. The agency notes that the agreement does
not state that this schedule was permanent in nature.
The record contains a December 12, 2002 notice informing complainant
that she is the successful bidder of Job Number 12 and that effective
December 14, 2002, her new hours are 3:00 a.m. to 11:30 a.m. with Sunday
and Tuesday as her days off.
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).
Under Commission regulations, and as specifically set forth in the
settlement agreement, complainant has thirty days to notify the agency
of a claim of breach. See 29 C.F.R. � 1614.504(a). In this case,
we find that complainant knew of the alleged breach at the latest on
December 12, 2002. Complainant, however, did not allege breach of the
agreement until April 10, 2003. The record reveals that the settlement
agreement correctly informed complainant of the applicable limitations
period for filing a breach of settlement claim. Even if the time limit
for raising the breach claim was tolled until March 24, 2003, we find
that complainant's notification of the agency of the breach claim by
letter dated April 10, 2003, was untimely. Therefore, we agree with
the agency that complainant's breach claim was untimely raised.<1>
Accordingly, the agency's final 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. � 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 17, 2003
__________________
Date
1Because we are affirming the agency's
finding that complainant's allegation of breach was not raised in a
timely manner, we will not address the agency's alternative disposition
of the breach claim.