01A32409_r
09-11-2003
Kathy M. Opel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathy M. Opel v. United States Postal Service
01A32409
September 11, 2003
.
Kathy M. Opel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32409
Agency Nos. 4G-780-0319-00
4G-780-0221-01
Hearing No. 360-A1-8191X
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 3, 2003, finding that it was in
compliance with the terms of a December 12, 2002 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The December 12, 2002 settlement agreement provided, in pertinent part,
that:
[Complainant] will be treated with dignity and respect and will not be
subjected to any form of retaliation due to her protected activity.<1>
By letter to the agency dated February 4, 2003, complainant alleged
that the agency breached the settlement agreement, and requested that
her complaint be reinstated for further processing. Specifically,
complainant alleged that she was subjected to retaliation as a result of
the settlement agreement when her duty station and start times changed
three times; her leave requests were denied; and she was charged Absence
Without Leave (AWOL).
In its June 3, 2003 FAD, the agency concluded that it had not breached
the settlement agreement. The agency further concluded that there was
no retaliation as a result of the agreement; and that complainant was
compensated as agreed. Further, the agency found that complainant was
approved 16 hours of leave for a family emergency on December 26 and 27,
2002; and that complainant was denied 48 hours of Leave Without Pay (LWOP)
due to staff reductions in all duty stations. Moreover, the agency found
complainant was charged AWOL for one week for failing to provide medical
documentation. Finally, with respect to the change of complainant's
duty station and start time, the agency found that complainant agreed
to be loaned out to other duty stations because of her knowledge of
route inspections.
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).
Complainant contends that she was subjected to retaliation as a result
of entering into the settlement agreement, when her duty station and
start time was changed three times; her leave requests were denied;
and she was charged AWOL. The Commission has held that a claim of
reprisal in violation of a settlement agreement's no reprisal clause is
to be processed as a separate complaint rather than as a breach of the
settlement agreement. See Bindal v. Department of Veterans Affairs,
EEOC Request No. 05900225 (August 9, 1990). Additionally, 29 C.F.R. �
1614.504(c) provides that claims that subsequent acts of discrimination
violate a settlement agreement shall be processed as separate complaints.
Therefore, if complainant desires to pursue these separate claims through
the EEO process, she is advised to initiate contact with an EEO Counselor
thereon.
Accordingly, the agency's finding no breach of the December 12, 2002
settlement agreement was proper and is hereby 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
September 11, 2003
__________________
Date
1The settlement agreement also provides that
complainant would be compensated $1,950.00. This provision is not at
issue in the instant appeal.