Leanette N. Niccum, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 23, 2003
01A33233_r (E.E.O.C. Oct. 23, 2003)

01A33233_r

10-23-2003

Leanette N. Niccum, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Leanette N. Niccum v. United States Postal Service

01A33233

October 23, 2003

.

Leanette N. Niccum,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A33233

Agency No. 4H-335-0129-03

DECISION

Complainant filed an appeal with this Commission from a final decision

by the agency dated April 21, 2003, finding that it was in compliance

with the terms of the March 26, 2003 settlement agreement into which

the parties entered.

The settlement agreement provided, in pertinent part, that the agency

would:

Put start times in on schedule for [complainant];

. . . .

Maintain a positive work environment and open communication.

By letter to the agency dated April 1, 2003, complainant alleged that

the agency was in breach of the settlement agreement. Specifically,

complainant alleged that the agency failed to post her starting times

on the schedule each week. Complainant further alleges on appeal,

that the agency failed to comply with provision (5) when her request

to review her official personnel file (OPF) dated March 31, 2003, was

denied until May 1, 2003.

In its April 21, 2003 decision, the agency concluded that the settlement

agreement has been fully implemented. As verified by the Manager of

Customer Service, the agency found that complainant's starting times have

been placed on the weekly schedule and presently, all employees enjoy

a positive working environment and open communications at complainant's

duty station.

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).

In the instant case, we find complainant has not shown that the agency

failed to post her starting times in accordance with the settlement

agreement. The Commission notes that numerous hand-written annotations

appear on the pages complainant has submitted on appeal indicating that

her starting times have been put on the schedule. We find nothing to

support complainant's claim that her scheduled starting times (whether

hand-written or not) were not posted in a timely fashion. We therefore

find that complainant has not demonstrated that breach of provision (3)

of the settlement agreement occurred.

We find provision (5) of the settlement agreement too vague to be

enforceable. Accordingly, we find no breach of provision (5) of the

settlement agreement has occurred. Nevertheless, we remind complainant

and the agency, that subsequent discriminatory acts based on reprisal

should be processed as new claims, rather than as claims of breach of

the instant settlement agreement. 29 C.F.R. � 1614.504(c).

Specifically, we note that on appeal complainant argues that her request

to review her OPF was deliberately denied. This matter was not the

subject of the settlement agreement. Complainant is advised that if she

wishes to pursue this reprisal claim she raised for the first time on

appeal, then she must initiate contact with an EEO Counselor within 15

days after she receives this decision. The Commission advises the agency

that if complainant seeks EEO counseling regarding the new claim within

the above 15-day period, the date complainant filed the appeal statement

in which she raised this claim with the agency shall be deemed to be

the date of the initial EEO contact (unless she previously contacted a

counselor regarding these matters). Cf. Alexander J. Qatsha v. Department

of the Navy, EEOC Request No. 05970201 (January 16, 1998).

Accordingly, we AFFIRM the agency's finding that no breach of the

settlement agreement of March 26, 2003 occurred.

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

October 23, 2003

__________________

Date