0120081571
01-28-2010
Nancy F. Andre, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Nancy F. Andre,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120081571
Agency No. 4G752014101
DECISION
Complainant filed an appeal with this Commission, pursuant to 29
C.F.R. �1614.504(b), after informing the agency in writing that it was not
in compliance with the terms of the April 29, 2005 settlement agreement.
The record reflects that the agency did not issue a decision within
35 days of the notification. Consequently, the Commission accepts the
instant appeal in accordance with 29 C.F.R. � 1614.504(b).
The April 29, 2005 settlement agreement provided, in pertinent part,
that:
(1) The agency shall convert complainant to a full-time employee
effective January 6, 1996;
(2) Complainant shall remain in her current job assignment (limited
duty assignment in the Passport Office of the Tyler, Texas Post Office)
as long as the agency has a need for the work she performs, and;
(3) The agency shall issue a check to complainant and her attorney
jointly, for a lump sum in the amount of $17,000 in exchange for a full
and final release of any and all claims concerning employment disputes
asserted by complainant against the agency.
By letter to the agency dated December 17, 2007, 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, effective November 24, 2007, the agency reassigned her
to the East Texas Processing & Distribution Center as a Mail Processing
Clerk.
In a letter dated December 30, 2009, the agency concluded that the agency
had not breached the settlement agreement. The agency acknowledged
that complainant was moved from her assignment pursuant to a September
28, 2007 arbitrator's decision. The arbitrator's decision found that
the agency had violated the collective bargaining agreement (CBA) by
permitting complainant to remain in her duty assignment and preventing
more senior employees from exercising their retreat rights. The decision
directed the agency to assign complainant based on her seniority standing
in accordance with the CBA.
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).
Where an individual bargains for a position, without any specific terms
as to the length of service, the Commission has held that it would
be improper to interpret the reasonable intentions of the parties to
include employment in that exact position forever. Winkles v. United
States Postal Service, EEOC Appeal No. 01A60724 (May 2, 2006); Carter
v. United Postal Service, EEOC Appeal No. 01A60569 (May 25, 2006);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). Here, complainant was permitted to stay in her
limited duty position in the Passport Office from April 29, 2005 until it
was discovered that allowing her to remain in the position violated the
CBA on November 24, 2007. The record contains no evidence indicating that
the agency was aware that this circumstance would occur when the parties
entered into the agreement. Furthermore, a third party forced complainant
from her position. Therefore, we do not find that the agency acted in bad
faith. Complainant has not argued that she did not receive the $17,000
required by the agreement. We find that the agency has substantially
complied with the agreement. The Commission finds that complainant has
failed to show that the agency breached the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 28, 2010_______
Date
2
0120081571
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120081571