0120083052
09-11-2008
Helene M. Cusack, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Helene M. Cusack,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083052
Agency No. 4C190002608
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 9, 2008, finding that it was in
compliance with the terms of the January 16, 2008 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) Parties mutually agree that the [complainant] will be provided an
opportunity as a Postmaster relief at the Bryn Athen Post Office effective
2-2-08. [Complainant] also has the right to apply for reinstatement as
a career employee by writing to Human Resources at [address given].
By letter to the agency dated April 2, 2008, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency implement its terms. Specifically, complainant alleged that
the job was misrepresented to her. Complainant states she is being paid
less and that she did not realize the position was temporary.
In its May 9, 2008 FAD, the agency concluded that the settlement agreement
was not breached. Complainant was given the Postmaster Relief (PMR)
position and was informed that the position was non-career. The agency
noted that complainant's brother served as her representative and that
they were made fully aware of what the PMR position entails. Further,
the agency, in response to the appeal, points to the fact that complainant
was told that she could apply for a career position.
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, it is quite clear that the agreement calls for
complainant to be assigned to a PMR position, and the agency did as
agreed. The agency provided sworn statements that complainant was informed
about the position. Further, the fact that there is a statement informing
complainant of her right to apply for a career position convinces the
Commission that she was on notice that the PMR position was temporary
in nature. In addition, if complainant wanted to ensure that she would
be paid at her former rate of pay, she should have insisted that it be
in the agreement. As such, the Commission finds there was no breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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 11, 2008
__________________
Date
2
0120083052
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120083052