01a41808_r
10-15-2004
Towana S. Davis v. United States Postal Service 01A41808 October 15, 2004 . Towana S. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Towana S. Davis v. United States Postal Service
01A41808
October 15, 2004
.
Towana S. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41808
Agency No. 4I-640-0069-99
Hearing No. 280-A0-4024X
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's complaint of unlawful employment discrimination
that the parties had settled is proper. See 29 C.F.R. � 1614.504.
On June 26, 2000, the parties entered into a settlement agreement
resolving the complaint. The settlement agreement provided, in pertinent
part, that:
Complainant will have her name and score (81.7) placed on the current
register for Philatelic Clerks at Stamp Fulfillment Services.
If and when her score is reached on the register, an evaluation
from her immediate supervisor will be completed along with any other
information requested in accordance with normal reassignment regulations
and procedures. The Complainant will be subjected to the same criteria
as all other applicants applying for these positions, and will be given
the same consideration.
On May 30, 2003, complainant, previously, alleged that the agency breached
the settlement agreement. Specifically, complainant indicated that her
name and score should have been reached on the register seeking employment
as a Philatelic Clerk at the Stamp Fulfillment Service; and that her
name may have been passed over. On June 28, 2003, the agency responded
to complainant's claim by stating that it did not breach the settlement
agreement. Specifically, the agency stated that a named agency employee
in Washington, D.C., indicated that as of June 11, 2003, the agency was
hiring from a score of 83.0 from the Philatelic register. The agency also
stated that the register had not yet descended to complainant's score of
81.7 for hiring purposes. Complainant appealed that decision. In EEOC
Appeal No. 01A34317 (November 24, 2003), the Commission found that the
record lacked sufficient evidence to determine whether the agency breached
the settlement agreement. Thus, the Commission vacated and remanded
the subject matter back to the agency for supplemental investigation.
In accordance with the Commission's Order, the agency issued its
December 17, 2003 decision stating that it has complied with the
settlement agreement. The agency also submitted a copy of a Human
Resources Associate's affidavit, dated December 10, 2003, indicating
that complainant was on the Corporate Personnel list of applicants
requesting reassignment. The Associate stated that from this list
names were submitted by the highest score. Specifically, the Associate
indicated that complainant's score of 81.7 had not been reached for
a recent reassignment on September 9, 2000. Complainant appeals from
this decision.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984).
Complainant claims that she cannot be certain whether her name was placed
on the register in question. On appeal, the agency submits its letter
dated March 26, 2004, including a copy of the Human Resources Associate's
affidavit, dated March 26, 2004, clarifying his previous December 10,
2003 affidavit in that the lowest score reached for the September 9,
2000 reassignment was 93.5. The agency notes that there have been no
vacancies since September 9, 2000. Based on the foregoing, the Commission
finds that the agency did not breach the settlement agreement.
Accordingly, the agency's decision finding no settlement 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 15, 2004
__________________
Date