Patricia M. Sheridan, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 19, 2005
01a53832 (E.E.O.C. Oct. 19, 2005)

01a53832

10-19-2005

Patricia M. Sheridan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Patricia M. Sheridan v. United States Postal Service

01A53832

October 19, 2005

.

Patricia M. Sheridan,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A53832

Agency Nos. 1A-000-1605-93, 1A-000-1496-93, 1A-071-1005-95, 1A-075-1003-96

DECISION

Complainant filed an appeal with this Commission from a March 29, 2005

agency decision finding that it was not in breach of the settlement

agreement into which the parties had entered.

The settlement agreement, fully executed on March 19, 1997, provided in

pertinent part in paragraph 4 that:

(c) As soon as possible, no later than thirty days, after this agreement

is fully executed, the Postal Service will place [complainant] in a detail

assignment, not to exceed one year, at the Hoboken Facilities Service

Center also known as the Hoboken Real Estate Office. If placement in

this detail assignment is not made within thirty days, [complainant]

will be placed in a pay status pending assignment;

(d) .... [Complainant's] Form 50 will be changed back to the title of

Manager, Maintenance Support, EAS-17 immediately.

(e) At the conclusion of the above-referenced detail assignment, the

Postal Service will place Sheridan in an EAS-17, Manager, Maintenance

Support position in the geographical area of Hackensack, Newark, Kearny,

Elizabeth or Jersey City....

In an Information for Pre-Complaint Counseling, stamp dated by the agency

as having been received on January 10, 2005, complainant, a Manager,

Maintenance Operations Support at the NJ Metro P & DC, alleged that

the agency was in breach of the settlement agreement. Specifically,

complainant alleged that she was not being placed in the position

of Manager of Maintenance Operations Support at the Jersey City BMC.

She stated that she was placed at the NJ Metro for pay purposes until

a position opened up but when it did, the agency did not give her the

position.

In its decision, the agency noted that complainant was alleging breach

of paragraph 4(e) when she was not placed in the position of Manager,

Maintenance Operations Support, EAS-20, at the New Jersey International

and Bulk Mail Center and another person was selected. The agency also

noted that complainant indicated that the position at the New Jersey

International & Bulk Mail Center was the first opportunity for her to

be placed in the position because there were no prior vacancies.

The agency concluded that it was not in breach of the settlement agreement

because it placed complainant in the position of Manager, Maintenance

Operations Support at the Hackensack P & DC.<1> The agency stated

that the intent of the settlement agreement was to place complainant

in the position of Manager, Maintenance Operations at a level EAS-17.

The agency further noted that complainant did apply for the position of

Manager, Maintenance Operations at the New Jersey International and Bulk

Mail Center, that she was not selected and that if she had been selected,

the position would have been a promotion from a level EAS-19 to an EAS 20.

In discussing its decision, the agency noted that as a result of the

agency's 2002 EAS pay package, that grade levels for positions were

raised and, also, positions were assigned different occupation codes.

The agency further noted that complainant's position of Manager,

Maintenance Operations Support, EAS-17, was raised to EAS-18 and its

occupation code changed from 1640-7045 to 1640-7044. The agency also

noted that the position of Manager, Maintenance Operations Support,

EAS-17 was raised to EAS-19, and its occupation code changed from

1640-7044 to 2355-0015. The agency further noted that subsequent to

these changes, and as a result of compensation changes for supervisors

for fiscal years 2004 and 2005, complainant's position at level EAS-18

was raised to EAS-19 with the occupation code changed from 1640-7044 to

2355-0021, the position that complainant currently occupies.

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).

Upon review, the Commission concludes that the agency is not in breach

of the settlement agreement. The record reveals that complainant was

placed in an EAS-17 position in New Jersey and that her position was

subsequently upgraded to an EAS-18 and an EAS-19 by compensation changes

in the agency.<2> We find that by placing complainant in the EAS-17

position in New Jersey, the agency had complied with paragraph 4(e).

The agency's decision finding 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 19, 2005

__________________

Date

1The agency indicated that the facility later

became the NJ Metro P & DC.

2Although the settlement agreement reflects that the position title was

to be that of Manager, Maintenance Support, the agency was in substantial

compliance when complainant was placed in a position with the title of

Manager, Maintenance Operations Support. Moreover, complainant does

not raise the title of the position as an issue.