01A45081
11-09-2004
Kelly A. Bender, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kelly A. Bender v. United States Postal Service
01A45081
November 9, 2004
.
Kelly A. Bender,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45081
Agency No. 4E-553-0048-04
DECISION
Complainant filed an appeal with this Commission from an agency decision,
dated June 24, 2004, finding that the agency did not breach a settlement
agreement dated November 14, 2003. Pursuant to 29 C.F.R. �� 1614.401,
.504, the Commission accepts complainant's appeal.
The settlement agreement provided, in pertinent part,
There will be a route exam in February or March, the week to be chosen
with management and union input. After the route exam, [complainant]
will be notified within one week what the adjustment will be.
In a letter dated April 27, 2004, complainant informed the agency that it
breached the November 2003 settlement agreement when it failed to start a
route inspection on March 15, 2004 and failed to inform her of the results
of the inspection (adjustments) within a timely manner. Specifically,
complainant stated that agency management and the union agreed that her
route inspection would be held the third week of March and the agency
held the inspection Wednesday, March 17 through Tuesday, March 23 rather
than Monday, March 15 through Friday, March 19. Complainant stated that
the agency started the inspection on Wednesday rather than Monday to
effect its results as well as her non-scheduled day. Complainant stated
that the agency informed her of the inspection results on May 6, 2004,
which was seven weeks after the inspection was held.
In its June 24 decision, the agency stated that complainant's inspection
was delayed two days due to administrative errors by management and that
management determined that any final adjustments to complainant's route
would occur in Fall 2004. The agency explained that, however, management
has allowed complainant to set up her route and has given her street
assistance to ensure that she does not work more than eight hours per day.
On appeal, complainant provided an unsigned, temporary grievance
settlement regarding her route. Generally, the settlement states that
the agency will provide complainant assistance when necessary and the
agency will make adjustments to complainant's route consistent with
adjustments to other office routes. It noted that management and the
union would meet August 31, 2004 to discuss the temporary settlement.
In addition, in a letter, complainant stated that she is hesitant to
withdraw her complaint but she would like to place her complaint on hold
until Fall 2004 to determine if the agency has fulfilled its promises.
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).
We note that the agreement before the Commission is the agreement dated
November 14, 2003, not the temporary unsigned grievance settlement.
In considering complainant's breach claim, we find that the settlement
agreement states that the agency will conduct a route inspection on a
date in February or March determined by input from management and the
union and that the agency will convey the results of the inspection to
complainant within a week. Complainant states that management and the
union agreed that the route inspection would be held the third week of
March. The record reveals that the inspection was held on three days of
the third week of March and overlapped to two days of the following week.
Further, complainant states that she was provided the results of her
route inspection seven weeks after it was conducted. We find that any
breach of the pertinent parts of the November settlement agreement were
cured by the agency in accordance with 29 C.F.R. � 1614.504(b). We note
that complainant's suggestion of placing her complaint on hold to wait
for the agency's actions indicates that time was not of the essence.
Based on the above, we AFFIRM the agency's decision that it did not
breach the settlement agreement as claimed by complainant.
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 9, 2004
__________________
Date