Lizette Perez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 28, 2003
01A23357_r (E.E.O.C. Oct. 28, 2003)

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