01a54467
09-19-2005
Connie M. Paul, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Connie M. Paul v. United States Postal Service
01A54467
9/19/2005
.
Connie M. Paul,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54467
Agency No. 1E-981-0031-02
DECISION
On June 13, 2005, the Commission received complainant's Notice of Appeal,
alleging breach of a December 27, 2004 settlement agreement.
The December 27, 2004 settlement agreement provided, in pertinent part,
that:
The parties hereby agree to the following terms:
A. [Complainant] will receive from the agency a lump sum in the amount
of $5,000 in settlement for pain and suffering. There will be no
withholding from this lump sum. [Complainant] understands that she is
liable for any possible tax implications with regard to this lump sum.
B. [Complainant's] sick leave balance will be restored to forty hours,
and her annual leave balance will be restored to forty hours.
C. [Complainant] will be transferred to the next available city
carrier position in the Everett, Washington Post Office. [The agency]
understands that this transfer should be available to [complainant] within
sixty days. Pending this transfer, [complainant] is not required to
contact management at the Everett P&DF regarding her attendance. It is
understood that [complainant] will be subject to the same requirements
and conditions as any other employee transferring into another craft,
and will be required to clear through the return to work protocol.
D. All attendance-related discipline for [complainant] is purged.
All AWOL annotations related to [complainant's] medical condition will
be converted to LWOP.
By letter to the agency dated May 2, 2005, complainant's attorney
alleged breach. Therein, complainant's attorney stated that the agency
did not return complainant to work as a City Carrier. Specifically,
complainant's attorney stated that, �[s]ince the agreement was executed,
there have been at least three City Carrier positions open, none of
which have been offered to [complainant]. Instead, [complainant]
has been required to provide an opinion from her health care provider
that she is a physically able to perform the duties of the City Carrier
position; a requirement not imposed upon the persons ultimately hired
to fill the open City Carrier positions.� In addition, complainant's
attorney asserted that complainant received a notice that her medical
insurance was terminated April 1, 2005, and that her insurance �must
be restored retroactive to April 1, 2005; since, [complainant] should
have been employed before such time as a City Carrier...� Moreover,
complainant's attorney stated that there was a reduction in complainant's
seventh 2004 paycheck for annual leave, �a reduction from 38 hours to
26 hours;� and that this reduction of annual leave must be restored.
On May 19, 2005, complainant contacted an EEO Counselor regarding
her breach claim. Subsequently, via letter dated May 26, 2005,
complainant's attorney requested a meeting with the agency to discuss
the alleged breach.
In response to complainant's appeal, the agency asserts that the appeal
should be dismissed. Specifically, the agency asserts that it has not
issued a final determination with respect to complainant's breach claim;
therefore, her appeal is premature.
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).
As a threshold matter, the Commission does not find complainant's
appeal to be premature. The record reflects that complainant initially
informed the agency of the alleged breach of the settlement agreement
via letter dated May 2, 2005. Complainant filed an appeal after more
than thirty-five days had passed from informing the agency of the alleged
noncompliance, pursuant to 29 C.F.R. � 1614.504(b).
In the instant case, we are unable to ascertain whether the agency is
in compliance with the December 27, 2004 settlement agreement. We note
that the record does not contain a final determination and/or supporting
documentation from the agency indicating whether it is compliance with
the settlement agreement.
Accordingly, complainant's breach claim is REMANDED to the agency for
further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
(1) The agency shall investigate complainant's breach claim and shall
supplement the record with affidavit and/or documentary evidence as
to whether it is in compliance with the December 27, 2004 settlement
agreement.
(2) Within thirty (30) calendar days from the date this decision becomes
final, the agency shall issue a determination as to whether the agency
breached the December 27, 2004 settlement agreement.
A copy of the agency's determination must be submitted to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
9/19/2005
Date