01a30294_r
08-21-2003
Loretta J. Montgomery, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Loretta J. Montgomery v. United States Postal Service
01A30294
August 21, 2003
.
Loretta J. Montgomery,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30294
Agency No. 4E-990-002801
Hearing No. 380-A2-8145X
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 July 17, 2002, the parties entered into a settlement agreement
resolving the complaint. The settlement agreement provided, in pertinent
part, that:
a. As soon as reasonably practicable, but not later than sixty days from
the date of execution of this agreement, the Agency will pay the amount
of $22,500 in full settlement of all claims for compensatory damages
for physical injuries, pain and suffering sustained by Complainant on
and after June 14, 2000, the date of the claimed injury. . . .
Complainant agrees to apply for medical retirement as soon as reasonably
practicable, but not later than one month from the date of execution of
this Agreement. The Agency agrees that, within 2 weeks of any request
from the Complainant or OPM for any relevant documentation, the Agency
will take all actions reasonably necessary to support Complainant's
application for medical retirement, unless such confirmation would
result in an admission of civil or criminal liability. The Agency
agrees that no information provided by the Complainant in connection
with her application for medical retirement will be used as a basis
for disciplinary or other adverse employment action against Complainant.
The Agency agrees to take no position in any matter related to Complainant
that is inconsistent with its statements made in support of Complainant's
application for disability retirement. Complainant understands that
the Agency is under an obligation to certify to OPM the nature of the
job and assignment offers made to Complainant.
On September 6, 2002, complainant alleged that the agency breached
Provision 14.b. of the settlement agreement. Specifically, complainant
indicated that on August 14, 2002, she, through her attorney, informed the
agency that she was prepared to submit her medical retirement application,
and requested to be provided with copies of the Forms 3112B and 3112D
completed by the agency so that she could review them for accuracy and
completeness. Complainant argues that the agency failed to provide the
forms to her.
On October 2, 2002, the agency issued its decision finding that it did
not breach the settlement agreement. Specifically, the agency stated
that complainant previously requested and received an Application for
Immediate Retirement standard form 3107 and Documentation in Support of
Disability Retirement Application Standard from 3112, along with Applying
for Immediate Retirement under the Federal Employees Retirement standard
form 3113. The agency indicated that under the Disability Retirement
Application, complainant was required to complete the necessary forms
and associated documents and return them to the agency's personnel
office who would assemble the application package and send it to OPM.
The agency stated that since complainant did not actually apply for a
disability retirement, it did not breach the settlement agreement when
it did not provide complainant with her requested documents.
On appeal, complainant argues that the agency has failed to provide her
with documents that �the [agency] intends to submit to OPM in support of
[complainant's] medical retirement application.�
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).
Provision 14.b. of the settlement agreement provides that the agency
would take all actions reasonably necessary to support complainant's
application for medical retirement. The record indicates that complainant
has not submitted a medical retirement application. Thus, the Commission
finds that the agency was not required to submit any documents concerning
complainant's medical retirement application to OPM under the provision
at issue. Furthermore, the Commission notes that the subject provision
does not specifically provide that the agency would provide relevant
documents at issue to complainant before it submits them to OPM.
Based on the foregoing, the Commission finds that the agency did not
breach the terms of the settlement agreement.
Accordingly, the agency's decision 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
August 21, 2003
__________________
Date