01A30274_r
07-18-2003
Connie M. Su, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Connie M. Su v. United States Postal Service
01A30274
July 18, 2003
.
Connie M. Su,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30274
Agency No. 4F-907-0186-02
DECISION
Complainant filed a timely appeal with this Commission regarding the
terms of the September 12, 2002 settlement agreement into which the
parties entered.
The settlement agreement provided, in pertinent part, that:
(5) To resolve this issue[,] management will approve the forty[-]eight
hour sick leave request.
By letter dated October 31, 2002, addressed to the Commission, complainant
alleged that she was "never compensated in monetary value."<1> In a
letter to the agency dated November 7, 2002, complainant states that
she was coerced and intimidated into signing the settlement agreement
form by the mediator. She states further that she does not think she
should be made accountable for something that she signed under pressure.
On appeal, the agency contends that complainant's appeal is without
standing and requests that complainant's appeal be dismissed. The agency
relates that complainant's claims were resolved by settlement agreement
before the filing of the complaint and that complainant cites no breach
of the settlement agreement. Therefore, the agency reasons, no final
decision or determination has been issued by the agency from which
complainant may appeal.
The Commission will deem the agency's statement on appeal as the
agency's denial that any breach of the settlement agreement has occurred.
Therefore, the Commission will review whether the agency breached the
September 12, 2002 settlement agreement in the present appeal.
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).
In the instant case, the Commission observes that the September 12, 2002
settlement agreement bears the signatures of five individuals, including
complainant and her representative, referred to as the "Counselee"
and the "Counselee's Rep," respectively. Inasmuch as complainant had
the benefit of representation during mediation and at the time of the
settlement, we do not find credible complainant's assertion that she was
coerced into signing the settlement agreement or signed under pressure.
We find complainant's allegation on appeal that she was never compensated
in monetary value to mean that she believes the agency has not complied
with provision (5) of the settlement agreement. Significantly, we
find nothing in the record to indicate the agency has paid or otherwise
approved complainant for 48 hours of sick leave as agreed. Accordingly,
we will direct the agency to place evidence in the record showing it
has fully complied with the terms of the settlement agreement.
We therefore VACATE the agency's determination that no breach of the
settlement agreement has occurred, and REMAND the settled matter to the
agency for further processing as directed herein.
ORDER
The agency is ordered to conduct a supplemental investigation regarding
its compliance with the terms of the September 12, 2002 settlement
agreement. This investigation shall include evidence documenting
the agency's approval of complainant's 48 hour sick leave request as
described in provision (5) of the settlement agreement. This evidence
shall include all relevant leave slips, records, checks, fund transfers,
and other documentation to show that the sick leave was approved or
otherwise reimbursed. Additionally, the agency shall obtain statements
from all relevant parties regarding the approval or reimbursement of
complainant's 48 hours of sick leave.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall issue a new decision determining whether the agency
breached provision (5) of the settlement agreement based on the evidence
gathered for the record. A copy of the agency's new decision must be
sent to the Compliance Officer as referenced herein.
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
July 18, 2003
__________________
Date
1Complainant also wrote to this Commission in attempts to appeal a
�decision� made by a �hearing examiner� on September 12, 2002. These
letters concern complainant's September 12, 2002 mediated settlement
agreement.