0120092407
08-18-2009
Alpa C. Parekh, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alpa C. Parekh,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092407
Agency No. 1A073001504
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 30, 2009, finding that it was
in compliance with the terms of the March 12, 2004 settlement agreement
into which the parties entered. 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:
(1) [Complainant] will be assigned to the position of Information
Clerk, PS-6, 23012XX, Start Time 6:30 a.m.; Rest days: Saturday/Sunday,
effective March 24, 2004.
By letter to the agency dated April 3, 2009, 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 informed her that her job would be abolished
effective May 8, 2009 and that she should bid for a new job.
In its April 30, 2009 FAD, the agency concluded it was not in breach of
the agreement. The agency noted that the International and Bulk Mail
Center would be changed to a Network Distribution Center, and the new
structure changed the numbers and types of positions needed to process
the mail. As a result, complainant's position was abolished as well as a
number of clerk positions. Further, the agency noted that the agreement
was five years old.
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).
The Commission has held that where an individual bargains for a position
without any specific terms as to the length of service, it would be
improper to interpret the reasonable intentions of the parties to include
employment in that exact position ad infinitum. See Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Papac
v. Department of Veterans Affairs, EEOC Request No. 05910808 (December 12,
1991); see also Parker v. Department of Defense, EEOC Request No. 05910576
(August 30, 1991). In addition, the Commission has held that there is no
breach of a settlement agreement "where an individual has been assigned to
a position pursuant to a settlement agreement, has held the position for a
period of time, and then is excised out of the position because of agency
downsizing that was not anticipated at the time of the agreement." Gish
v. Department of the Army, EEOC Appeal No. 01950923 (August 14, 1995).
The record indicates that the settlement agreement was 5 years old
during which time complainant was upgraded to a PS-7. Further, the
agency restructured the facility where complainant worked after nearly 5
years and could not have predicted that when the agreement was issued.
In her appeal complainant argues that she should be given the position
that was the issue of her original EEO complaint, and states there are
other Clerk positions in the facility. The agreement did not require
the agency to create or place complainant into another position in the
event of a restructuring. The Commission finds that because after 5
years the needs of the facility changed when there was a restructuring,
the agency is not in breach of the agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 18, 2009
__________________
Date
2
0120092407
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092407