Kimberly A. Samples, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 15, 2004
01a42327_r (E.E.O.C. Nov. 15, 2004)

01a42327_r

11-15-2004

Kimberly A. Samples, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Kimberly A. Samples v. United States Postal Service

01A42327

November 15, 2004

.

Kimberly A. Samples,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A42327

Agency No. 1G-772-0014-02

DECISION

Upon review, the Commission finds that the agency's decision not to

reinstate complainant's complaint of unlawful employment discrimination

that the parties had settled is proper. See 29 C.F.R. � 1614.504.

On December 18, 2002, the parties entered into a settlement agreement

resolving the complaint. The settlement agreement provided, in pertinent

part, that:

The Postal Service will restrict [Individual A's] 204B supervisory

activities to another section of the N. Houston P&DC and he will not

be allowed to act as a 204B in automation as long as [complainant]

is in automation. [Individual A] will be allowed in the automation

area when he performs his regular bid job which is in that area of the

building. [Complainant] acknowledges that she can go to Plant Manger

[Manager A] with problems and agrees to a �cooling off� period of at

least three weeks in order to allow changes to take place. . . . Parties

agree to $1,100.00 (one thousand one hundred dollars) in attorney fees.

On October 15, 2003, complainant alleged that the agency breached

the settlement agreement. Specifically, complainant indicated that on

September 3, 2003, she was summoned to an identified MDO's office and was

accused of calling Individual A's name and staring at him. On January

30, 2004, the agency issued its decision finding no settlement breach.

The Commission has held that settlement agreements are contracts between

the complainant and the agency and it is the intent of the parties

as expressed in the contract, and not some unexpressed intention, that

controls the contract's construction. Eggleston v. Department of Veterans

Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the

Commission generally follows the rule that if a 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 v. Building Engineering Services,

730 F.2d 377 (5th Cir. 1984).

The record contains an affidavit from the Plant Manager, identified

under the settlement agreement, indicating that Individual A was removed

from his position as an acting supervisor in automation and he did not

supervise the automation area where complainant worked. On appeal,

complainant does not dispute the Plant Manager's statement. In response

to complainant's appeal, the agency submits its brief stating that

Individual A was transferred to a mail-flow coordinator position outside

the automation area pursuant to the terms of the settlement agreement.

The agency indicates that in his position, Individual A does not supervise

the automation area where complainant works. The agency indicates that

while Individual A periodically interacts with management personnel in the

automation area, he is not a supervisor in that area and, consequently, is

not complainant's supervisor. Complainant does not contest the agency's

arguments. Based on the foregoing, the Commission finds that the agency

did not breach the settlement agreement. With regard to complainant's

claims concerning her discussion with the MDO and the MDO's accusation,

the Commission finds that they are beyond the scope of the settlement

agreement. To the extent that complainant is alleging that subsequent

acts of retaliation occurred, she should contact an EEO Counselor

pursuant to 29 C.F.R. � 1614.105 if she wishes to pursue a separate

complaint of discrimination under 29 C.F.R. � 1614.106. The Commission

does not address in this decision whether such claims would be properly

dismissed for any reason pursuant to 29 C.F.R. � 1614.107.

Accordingly, the agency's decision 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

November 15, 2004

__________________

Date