0120070327
03-30-2009
Dolores M. Berliner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dolores M. Berliner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070327
Agency No. 4H-330-0023-06
DECISION
Complainant filed an appeal with this Commission from a final decision by
the agency dated September 19, 2006, finding that it was in compliance
with the terms of the December 13, 2005 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
1. Personnel will submit a letter to Postal Headquarters along
with [complainant's] requests for reconsideration and appropriate
documentation and copy of the REDRESS settlement regarding her request
to change her current voluntary separation to voluntary early retirement.
[Complainant] will submit her request and all active documents by January
3, 2006, certified mail to [HR1]. [HR1] will submit her written letter
to Postal Headquarters, by Wednesday, January 11, [2006]. This letter
will be sent (along with all documentation submitted) by certified mail.
Additionally, [HR1] will send [complainant] copies of the letter
submitted to Postal Headquarters by certified mail. This will
be sent to the address of record.
2. All parties agree that if an unfavorable decision is rendered
by Postal Service Headquarters that [complainant] is free to pursue this
in whatever venue she deems appropriate.
On January 26, 2006, complainant alleged that the agency was in breach
of the settlement agreement, and requested that the agency specifically
implement its terms. Specifically, complainant alleged that HR1,
an agency official identified in the settlement agreement submitted
incorrect information to Postal Headquarters and failed to inform
complainant of additional options she had with respect to her active
service computation and retirement compensation.
In its September 19, 2006 decision, the agency concluded that the
agency complied with the terms of the settlement agreement and found
specifically that HR1 submitted a letter to Postal Service Headquarters,
dated January 3, 2006, and that complainant had received a copy of this
letter as well as a response to the letter, dated January 30, 2006,
from Postal Service Headquarters.
On appeal, complainant recounts the events in her career of more
than 20 years with the agency that ultimately led to her retirement.
Complainant describes what she believes to be the mishandling of her
retirement options and other administrative errors and omissions on the
part of agency officials to fully inform her of the opportunity she had
to take advantage of early retirement incentives.
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, we find the only issue on appeal is whether the
agency complied with the terms of the settlement agreement dated December
13, 2005. We note that the agreement requires the agency to send a letter
to Postal Service Headquarters and that the record on appeal indicates the
agency did exactly that. Nothing in the settlement agreement guarantees
a specific response to the letter described in provision (1), nor does
the settlement agreement provide any further benefits for complainant
in the way of any change in her retirement benefits. We concur with
the agency's final decision that the agency has fully implemented the
terms of the settlement agreement and that no breach of the agreement
occurred as alleged. We AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 30, 2009
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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