Kelly A. Bender, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 9, 2004
01A45081 (E.E.O.C. Nov. 9, 2004)

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