01996158
08-25-2000
Lorna P. Ryan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast Area), Agency.
Lorna P. Ryan v. United States Postal Service
01996158
August 25, 2000
.
Lorna P. Ryan,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01996158
DECISION
Lorna P. Ryan (complainant) filed a timely appeal with this Commission
from a final decision by the agency (FAD) dated July 1, 1999, finding
that it was in compliance with the terms of the March 15, 1999 settlement
agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to
as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b);
and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).
The settlement agreement provided, in pertinent part, that:
(1) the agency agrees to change the hours and off days of the
Modified Distribution Clerk<2> position to 0500 - 1350, with off days
of Saturday/Friday... (The position description includes a list of
duties/responsibilities. Duty/Responsibility #3 is �manually distributes
mail in case separations by zip code and scheme.�);
the agency will also adhere to complainant's work restrictions as noted
by her physician in the assignment of duties;
there will be no retaliation against the complainant for her EEO
activities.
By letter to the agency dated May 7, 1999, complainant alleged that
the agency was in breach of the settlement agreement and requested
reinstatement of the twenty-five complaints she withdrew in furtherance
of the settlement agreement. Specifically, complainant alleged that the
agency refused to give her work within the parameters of the position
description and forced her to do work beyond her accepted restrictions by
requiring her to sort flats, in addition to letters. Complainant also
alleged that the agency retaliated against her by demoting her husband,
a Postal Manager, to rotating days off, thwarting her request for days off
to coincide with family time. Finally, she contended that other employees
were performing the duties of her accepted position in her stead.
In its July 1, 1999 FAD, the agency concluded that the settlement
agreement had not been breached. Agency officials stated that complainant
was performing work within the position description and within her
medical restrictions. The agency noted that complainant was restricted to
intermittent standing for 4 hours a day, intermittent sitting for 4 hours
a day, intermittent lifting of up to 20 pounds and no bending<3> and that
she was not required to do any work that violated these restrictions.
The agency concluded that while complainant felt that requiring her
to sort flat mail was outside her position description and violated
her restrictions, the position description allowed for this activity
and it did not violate her restrictions. Specifically, the position
description lists �manually distributes mail in case separations by zip
code and scheme� as Duty/ Responsibility #3. The agency's apparent
argument is that the �mail� referred to in Duty/Responsibility #3
includes both letters and flats, i.e., pieces of mail which exceed the
dimensions for letter-size mail. The agency explained that it modified
the case<4> in which complainant was required to sort flats so that the
task would not violate her restrictions. The agency also noted that
complainant's husband was temporarily assigned to rotating days off
when a supervisor at his station was reassigned, but that the position
has been reassigned and complainant's husband again had weekends off.
Finally, the agency noted that the individuals allegedly performing the
duties of complainant's accepted position in her stead, were not doing
so and had their own assignments.
According to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.504(a)) 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 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, the agreement requires that complainant
manually distribute mail in case separations by zip code or scheme.
It makes no distinction between letters and flats, two types of mail.
While complainant argues on appeal that the agency was aware that her
restrictions prevented her from sorting flats, as evidenced by affidavits
taken in various EEO complaints, the agreement unambiguously imposes on
complainant the duty of manually distributing mail. The plain meaning of
�mail� includes both letters and flats. We will, therefore, not consider
extrinsic evidence that suggests that complainant had a different
intention when she agreed to this requirement. To the extent that
complainant wanted the agreement to exclude the sorting of a certain type
of mail from her duties, that requirement should have been reduced to
writing as part of the settlement agreement. See Jenkins-Nye v. General
Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
Moreover, complainant has provided no evidence that the agency forced
her to work outside her restrictions. She did not allege that the
restrictions described by the agency are not her true restrictions,
nor did she explain how sorting flats violates these restrictions.
Rather, she referred to affidavits taken during the investigation of
various EEO complaints which indicate that agency officials were aware
that one of the duties complainant said she could not perform due to
her medical condition was sorting flats. This does not establish that
sorting flats violates any of her medical restrictions.
As for complainant's contention that the agreement was breached when
her husband was given rotating days off, we note that no provision in
the agreement mentions her husband or his days off. Any action taken
by the agency against complainant's husband could not, therefore, be a
breach of the settlement agreement.
In terms of complainant's allegation that demoting her husband to
rotating days off violated the anti-retaliation provision of the
agreement, the Commission has held that a complaint which alleges
reprisal or further discrimination in violation of a settlement agency's
"no reprisal" clause, is to be processed as a separate complaint and not
as a breach of settlement. See Bindal v. Department of Veterans Affairs,
EEOC Request No. 05900225 (August 9, 1990); 29 C.F.R.� 1614.504(c).<5>
Therefore, to the extent that complainant alleged that actions taken by
the agency were in violation of the anti-retaliation provision of the
settlement agreement, we advise complainant that if she wishes to pursue
any allegations of retaliation, she should contact an EEO Counselor within
thirty (30) calendar days of the date that she receives this decision.
Accordingly, we find that the agency correctly determined that it did
not breach the settlement agreement and hereby AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 25, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 A position description of this modified position was signed by
complainant on March 15, 1999 and attached to the settlement agreement.
3 The record does not contain any clear listing of complainant's medical
restrictions, such as a doctor's letter. In various documents, the
agency refers to the above as complainant's restrictions and she makes
no argument to the contrary.
4 A �case� is a piece of equipment containing separations (pigeonholes)
into which letters, flats or irregular parcels are sorted.
5 We note, however, that it appears that such a claim would only be
cognizable if made by complainant's husband, as he was the victim of
the alleged adverse action.