01A20345_r
02-07-2002
Shirley M. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shirley M. Johnson v. United States Postal Service
01A20345
February 7, 2002
.
Shirley M. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20345
Agency No. 4A-070-0017-01
DECISION
Complainant filed an appeal with this Commission from an agency decision,
issued on August 17, 2001, finding that it was in compliance with the
terms of the September 22, 2000 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
Management agrees to rescind the Notice of Termination dated September
21, 2000 issued against the counselee.
Counselee shall submit and Management shall accept a resignation form
2574. Note, Counselee shall not be eligible to collect back pay.
The intent of this Agreement is that the Counselee be restored for
eligibility and reactivated in the hiring registry as a PTF employee �
with the stipulation that the Counselee is eligible for employment based
on her current examination scores.
Further, the parties agree that this agreement shall remain private
and confidential.
By letter to the agency dated July 16, 2001, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency implement its terms. Specifically, complainant alleged that
�one post office claims they will not consider a person in my situation,
the largest post office in the state, and another... claiming they will
consider me, but others have been employed when they are considering
and my tests scores are supposed to be the determining factor.�
In its August 17, 2001 decision, the agency noted that a July 5,
2001 letter that complainant received from the Newark, New Jersey
Post Office stated that it was not currently accepting reassignment or
reinstatement requests for the carrier position. The agency determined
that the policy not only affected complainant but any employees already
on the agency rolls. Moreover, according to the agency, test scores
are the determining factor when hiring from a register of eligibles,
but not for reinstatement. Therefore, it concluded that the settlement
agreement had not been breached.
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).
Complainant contends that the settlement agreement was breached when
she was not considered for a carrier position. The record contains a
copy of a July 5, 2001 letter from the Newark post office, notifying
complainant that it had received her request for reinstatement but that
it was not currently accepting reassignment or reinstatement requests. We
do not find that the settlement agreement was breached by the notice.
The settlement merely indicated that the agency was to restore
complainant for eligibility and reactivate her in the hiring registry.
Based upon the plain language of the settlement, we find that the agency
was simply obligated to rescind complainant's termination notice and
accept her resignation form. There is no evidence in the record that
these actions were not taken. While complainant argues on appeal that
she should have been placed with new employees, rather than with those
seeking reinstatement or reassignment, and that she should have been
selected according to her test scores, we do not find that this action
was contained in the settlement agreement. The settlement language does
refer to eligibility based on test scores; however, the agreement does
not explicitly state how complainant should be categorized when seeking
a position. If complainant sought to be placed with new employees,
she should have included clear language in the settlement agreement
directing the agency to take such action. Therefore, we agree with the
agency that the settlement agreement has not been breached.
Accordingly, the agency's decision is hereby 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
February 7, 2002
__________________
Date