Julia Alfahoum, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 23, 2004
01a44306 (E.E.O.C. Nov. 23, 2004)

01a44306

11-23-2004

Julia Alfahoum, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Julia Alfahoum v. United States Postal Service

01A44306

November 23, 2004

.

Julia Alfahoum,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A44306

Agency No. 4F-926-0188-03

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated April 16, 2004, finding that it was in

compliance with the terms of a June 17, 2003 settlement agreement. See 29

C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The June 17, 2003 settlement agreement provided, in pertinent part, that:

(2) Management shall allow complainant to resign and be reinstated on

the eligibility hiring list.

By letter to the agency dated April 5, 2004, complainant's union

representative alleged on behalf of complainant that the agency breached

the settlement agreement. The April 5, 2004 letter is not in the

record; however, the record reflects that by letter dated March 9,

2004, complainant stated to the Executive Vice President of her union

that the settlement agreement required that she would �be reinstated

on the eligibility hiring list with priority,� but that she was �still

waiting to be call[ed].� The letter also stated that the agency Human

Resources Department told her that it �can not call� her because the

union did not provide them a copy of the agreement.

The record reflects that by letter dated July 1, 2003, the agency

informed complainant that her name had been added to the agency's

hiring pilot program. However, after complainant applied for a Carrier

position, she was informed by letter dated September 23, 2003, that

because of her �recent termination for cause,� she was �disqualified for

employment at present for [that] position.� The letter further informed

complainant that her name was removed from �all current and future hiring

consideration for all hiring pilot positions in the Santa Ana District.�

In its April 16, 2004 decision, the agency concluded that it was

in compliance with the settlement agreement. The agency found that

complainant's request for a reassessment of the agency's September

23, 2003 unsuitability determination had been reviewed; and that the

agency reversed the unsuitability determination. The agency found that

complainant's name was placed back into the hiring pilot with an active

eligible score, and that complainant was eligible to be considered for

employment by applying for career vacancies that are posted. Finally,

the agency indicated that by letter dated April 14, 2004, complainant was

sent a description of her eligibility status as described, and provided

with a current applicant guide.

On appeal, complainant states that she was placed back into the hiring

pilot on April 14, 2004, not until almost a year after the date of the

settlement agreement. Complainant additionally states that the agreement

called for her to be �rehired as soon as possible,� and that the agency

did not enforce the agreement. Complainant also submits a May 6, 2004

letter to her union representative, requesting that she be hired with

priority because she has been waiting to be rehired for almost a year.

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).

Here, we determine that complainant did not show that the agency breached

the settlement agreement. The settlement agreement itself states that

complainant will �be allowed to be reinstated on the eligibility hiring

list.� The record shows that after initially being reinstated to the

eligibility hiring list in July 2003, complainant was removed from the

list in September 2003, but that she was again reinstated on April

14, 2004. The Commission concludes that to the extent that the agency

breached the settlement agreement, any such breach has been cured.

Finally, the Commission notes that although complainant claims that the

settlement agreement called for her to be reinstated �with priority,�

and to be �rehired as soon as possible,� we find nothing within the

terms of the settlement agreement to substantiate these claims.

Accordingly, the agency's decision finding that it is in compliance with

the settlement agreement is AFFIRMED.

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 23, 2004

__________________

Date