01A23357_r
10-28-2003
Lizette Perez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lizette Perez v. United States Postal Service
01A23357
October 28, 2003
.
Lizette Perez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23357
Agency No. 4A-070-0187-01
DECISION
Complainant filed an appeal on June 1, 2002, with this Commission from
an April 24, 2002 agency decision finding that it was not in breach of
the August 7, 2001 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
1. Management of South Station Post Office, Newark, agrees to
expeditiously train [complainant] to operate an LLV (long life vehicle)
on or before August 17, 2001. . . .
2. Management agrees to provide the [complainant] with all work on her
own assignment for which she is medically suited.
3. Management agrees to provide the [complainant] with an equitable
share of all other light duty work in the unit; no light duty carrier
should receive a disparate share of available work (consistent with their
medical limitations). [Complainant] understands that she is not being
treated in a disparate manner when other light duty letter carriers with
less restrictions are given more hours on the road than she.
4. Management agrees to notify other Newark stations that the
[complainant] is available for work which she is medically suited for.
5. Management agrees to comply with medical findings of the
[complainant's] physician
as approved by the [agency's] Medical Unit.
By letter to the agency dated January 20, 2002, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency was in breach of paragraphs 1 through 5 of
the agreement.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides, in relevant part,
that if the complainant believes that the agency has failed to comply
with the terms of a settlement agreement, the complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30
days of when the complainant knew or should have known of the alleged
noncompliance. EEOC Regulation 29 C.F.R. � 1614.504(a) also 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 its decision finding no breach of the settlement agreement, the agency
stated that all the incidents of alleged breach occurred between August
2001 and December 2001, and were therefore untimely. The Commission
finds that complainant did not raise her breach claims until, at the
earliest, January 20, 2002 (the date of her letter alleging breach of
the settlement agreement).
Paragraph 1
Regarding paragraph 1, the agency stated that it had cured any breach of
paragraph 1 by providing training on September 18, 2001. Complainant
alleged that she was not provided opportunity for training by a licensed
driver until September 18, 2001, and the settlement required training
by August 17, 2001. Complainant alleged that she was not allowed to
deliver mail on her appointed route 1264 because she was not licensed
to drive an LLV. After training, she was allowed to deliver mail on the
streets occasionally and then she was not allowed to deliver mail at all.
We find that complainant failed to provide notice of the breach
within the requisite 30 days of when she knew of the alleged breach of
paragraph 1. Assuming for the sake of argument that complainant's notice
was timely, the agency cured the breach by providing the training within
approximately one month of the August 17, 2001 date and was therefore
in substantial compliance. We find also that the disputed provision
only obligated the agency to provide LLV training. The agency was not
required to provide complainant with LLV assignments under this provision.
Paragraph 2
Complainant has not identified any incident occurring within 30 days of
her allegation of breach of this paragraph of the agreement. Accordingly,
complainant's notice of the alleged breach is untimely.
Paragraph 3
The Commission finds that paragraph 3 is too vague and generalized to be
enforced, given the ambiguity as to what would constitute an equitable
share of light duty work and a disparate share of available work.
Moreover, even if the provision was enforceable, complainant did not
specifically identify any dates within the 30-day requisite time period
when any alleged breach of this paragraph occurred.
Paragraph 4
Complainant does not argue that the agency failed to notify other Newark
stations that complainant is available for work for which she is medically
suited. Although complainant argues that she has not received such work,
the agreement does not provide that she receive such work - only that
notification occur. Therefore, we find that complainant has failed to
show that the agency breached paragraph 4 of the settlement agreement.
Paragraph 5
Complainant has not identified any incident occurring within 30 days of
the alleged breach of this paragraph of the agreement. Accordingly,
complainant's notice of the alleged breach is untimely. Furthermore,
we note that complainant has not indicated which specific medical
finding of her physician, as approved by the agency's Medical Unit,
was not complied with by the agency (or the date of that noncompliance).
Accordingly, the agency's finding of no breach is 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
October 28, 2003
__________________
Date