01A24788_r
07-09-2003
Ruth A. Vanderbout, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ruth A. Vanderbout v. United States Postal Service
01A24788
July 9, 2003
.
Ruth A. Vanderbout,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24788
Agency No. 5K-000-1154-02
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated August 6, 2002, finding that it was in
compliance with the terms of the January 21, 1994 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) [Supervisor S1 will] act as [complainant's] full [time] supervisor
to the extent possible. If [S1] is absent the[re] will be someone else
to supervise [complainant].
If a specific kind of supervis[ion] is requested of [complainant],
[complainant] will be entitled to know by whose direction.
General supervision will continue for all carriers. [Complainant]
will not be singled [out].
By letter to the agency dated May 29, 2000<1>, 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 the agency failed to provide her with access to S1, a
supervisor named in the settlement agreement, at the time complainant
was summoned to an investigative interview regarding a customer complaint
on February 8, 2000.
In its August 6, 2002 decision, the agency concluded that in August
1998, S1 had been promoted to the position of Station Manager, and no
longer worked at the same location as complainant, and accordingly,
was no longer responsible for complainant's supervision. Moreover,
the agency concluded that complainant did not need "supervision" in
order to participate in an investigative interview. The agency added
that complainant had been allowed to have a union steward present
during the interview. Therefore, the agency found that no breach of
the settlement agreement occurred.
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).
In the instant case, we concur with the agency that no breach of the
settlement agreement occurred. We find controlling the second sentence
of provision (1) which provides that if S1 is absent, as he clearly was
after his promotion and reassignment in August 1998, someone else will
supervise complainant. Complainant does not allege that she was without
any supervision. Nor does the settlement agreement provide that the
agency agrees that S1 will supervise complainant indefinitely. We find
the agency did not breach the settlement agreement by failing to permit
complainant to have her then former supervisor, S1, present at the time
of the internal investigative interview regarding a customer complaint.
We therefore AFFIRM that agency's final determination finding that no
breach of the January 21, 1994 settlement agreement occurred.
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
July 9, 2003
__________________
Date
1The agency initially processed complainant's breach claim as a new
complaint. Our prior decision in Vanderbout v. United States Postal
Service, EEOC Appeal No. 01A05349 (June 5, 2002) remanded complainant's
breach claim for investigation and processing pursuant to 29 C.F.R. �
1614.504 et seq.