01A21655_r
08-15-2002
Nido A. Pahang, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nido A. Pahang v. United States Postal Service
01A21655
August 15, 2002
.
Nido A. Pahang,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21655
Agency No. 4E-980-0132-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated December 31, 2001, finding that it was in
compliance with the terms of the August 1, 2001 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
Supervisor Customer Services at the Kent Post Office (SCS) will contact
the Auburn Postmaster and the Renton Postmaster and notify them that
complainant would like to be reinstated as a letter carrier at their
respective post offices. SCS will also contact the Kent Postmaster
and notify her that complainant would like to be reinstated as a letter
carrier, with first preference at the Covington or Carrier Annex and if
not available, then at the Main Office. SCS will continue to monitor
complainant's request for reinstatement up to January 1, 2002. However,
should SCS leave his position in Kent prior to January 1, 2002, he will
request his successor to continue to monitor complainant's reinstatement
to that date.
By letter to the agency dated October 29, 2001, complainant claimed that
the agency failed to comply with the terms of the settlement agreement,
and requested that the agency reinstate her complaint for further
processing from the point processing ceased. Specifically, complainant
claimed that the agency failed to comply with the settlement agreement
because it did not appear that complainant would be reinstated prior to
December 2001.
In its December 31, 2001 decision, the agency concluded that it complied
with the terms of the settlement agreement because the SCS contacted
the Kent and Auburn offices, and advised them of complainant's wish to
be reinstated as a City Carrier. The SCS did not contact the Renton
office because the Manager Customer Services at the Auburn Post Office
agreed to reinstate complainant with a new probationary period; however,
the Auburn office has been unable to reinstate complainant because the
agency is not currently hiring new City Carriers, and has not hired any
City Carriers since June 2001.
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 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, complainant claims that the agency has not complied
with the terms of the settlement agreement because it does not appear
that she will be reinstated. Complainant has failed to indicate any
specific term of the settlement agreement with which the agency has not
complied. A review of the settlement agreement shows that the SCS was
to contact three offices on complainant's behalf and notify them that
complainant would like to be reinstated as a letter carrier; however,
it does not state that complainant would be reinstated as a condition of
the settlement agreement. Furthermore, although on appeal complainant
claims the she was �tricked� into entering the settlement agreement,
she has presented no evidence of duress or coercion. Therefore, the
Commission concludes that complainant has not shown that the agency
failed to comply with the terms of the settlement agreement.
The agency's determination that it complied with the terms of the August
1, 2001 settlement agreement 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 15, 2002
__________________
Date