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