0120063303
11-15-2007
Holly Gage, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Holly Gage,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200633031
Agency Nos. 4G-720-0056-00,
4G-720-0115-98,
4G-720-0116-01,
4G-720-0163-98
DECISION
Complainant and the agency executed a settlement agreement dated December
1, 2003, that resolved complainant's four EEO complaints. The settlement
agreement provided, in pertinent part, that:
(1) As a final and complete settlement to the above-referenced EEO
complaint, the complainant will be placed in an Unassigned Full-time
Regular Clerk position at the Batesville, AR Post Office. She will
be assigned to Tour 1 with non-scheduled days of Sunday and Wednesday.
Complainant will be placed in this position as soon as possible upon final
execution of this settlement agreement. Once placed in this position,
all contractual provisions will apply to the employee's scheduling and
assignments, including those governing seniority, bidding and excessing.
(2) The complainant has been notified that, because of periods of
Leave Without Pay in excess of six pay periods, the layoff protection
afforded by Article 6, �2 of the APWU National Agreement has lapsed.
As a condition of this settlement agreement, the Postal Service agrees
to treat the complainant as though she had uninterrupted service since
her initial Entered on Duty date with the Postal Service, ONLY for
the purposes of Article 6 protections. This is not to be construed as
entitling the complainant to leave or to any other benefit she did not
accrue as a result of the periods of Leave Without Pay.
By letter to the agency dated March 28, 2006, complainant alleged that the
agency breached the settlement agreement and requested that the agency
reinstate her complaints. Specifically, complainant alleged that the
agency breached the settlement agreement by changing her seniority date
from May 27, 1995 to November 29, 2003. Complainant stated that when she
entered into the settlement, she was immediately reinstated to her former
position with all of her seniority restored. Complainant noted that she
had been working and bidding according to the seniority date of May 27,
1995, until March 15, 2006, when a new seniority list was issued as a
result of the settlement of a grievance filed against her settlement
agreement. Complainant argued that the grievance settlement rendered
the instant settlement agreement null and void since the settlement
agreement is now unenforceable.
On May 4, 2006, complainant filed the instant appeal with the Commission.
Complainant states that the agency did not issue a final action with
regard to her allegation of breach.
In response, the agency asserts that it did not breach the settlement
agreement. According to the agency, neither of the aforementioned
provisions specifies a date certain for complainant's seniority date.
The agency maintains that in the absence of such a provision, it cannot
be found in breach. The agency asserts that its utilization of a modified
seniority list from complainant's reinstatement of November 2003 to March
2006, did not stop it from changing her seniority date in March 2006.
The agency notes that the change in complainant's seniority date was
the result of the settlement of a grievance filed by another employee
under the terms of the collective bargaining agreement and that the
last sentence of the aforementioned first provision of the settlement
agreement contemplated, and provided for, an event such as that at issue.
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).
Initially, we observe that subsequent to the instant appeal, complainant
filed a claim of breach with regard to a purported settlement agreement
executed on June 22, 2006. This purported settlement agreement provided
that:
Being interviewed for the Postmaster position in Magness Arkansas -
EAS 11, and if selected for that position and placed in the position
no later than two full pay periods from the date of selection, will
resolve the allegation of a breach of agreement of the EEO Settlement
dated 12/1/2003 for the cases listed above.
I further voluntarily agree that this EEO Settlement Agreement supersedes
and replaces the EEO Settlement dated 12/1/2003.
Complainant claims that she was not interviewed for the Postmaster
position. Upon review of this purported settlement agreement dated
June 22, 2006, we find that this is not a valid agreement in light of
the uncertainty of the consideration being received by complainant.
In fact, we observe that complainant received no consideration given
that she was not chosen for the position. Therefore, the settlement
agreement executed on June 22, 2006, was not valid and the settlement
agreement executed on December 1, 2003 remains intact.
In terms of the December 1, 2003 agreement, complainant contends
that the agency breached the settlement agreement when it changed her
seniority date. The settlement agreement provides that once complainant
was reinstated in her position, all contractual provisions would apply
to her scheduling and assignments, including those governing seniority,
bidding and excessing. A reading of the settlement agreement reveals
that no date certain was established as complainant's seniority date.
Therefore, the change in complainant's seniority date as precipitated by
the grievance settlement did not violate the terms of the settlement
agreement. Moreover, the grievance settlement did not render the
settlement agreement at issue unenforceable and null and void. The
grievance settlement stated that complainant's seniority date would be
adjusted to November 29, 2003. The grievance settlement further stated
that complainant would remain a full-time clerk. In light of the fact
that the grievance settlement did not affect the terms of the settlement
agreement, the settlement agreement was not rendered null and void.
Accordingly, we find that the agency did not breach the settlement
agreement.
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
November 15, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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2
01200633
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120063303