0120091990
08-28-2009
Anna-Delorez C. Sims,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091990
Agency No. 4G-760-0143-08
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated February 24, 2009, finding that it was in compliance with
the terms of the November 12, 2008 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402; 1614.405; 1614.504(b).
The settlement agreement provided, in pertinent part, that:
The parties acknowledge that the consideration for the [Office in Charge
(OIC)] detail in Ponder TX was withdrawn due to [the management official's
(S1)] inability to release complainant. Complainant was not released
because the station is short staffed. However, [S1] acknowledges that
complainant may only be denied a release for a future detail twice and she
must be released upon the third opportunity for a detail. [S1] agrees
to inform complainant whenever someone has demonstrated an interest
in offering her a detail even if the station is unable to release her
at such time. In addition, [S1] and complainant agree to discuss with
complainant's current supervisor the possibility of changing her current
begin tour hours to earlier hours. Such discussion will occur by Friday,
November 21, 2008.
By letter to the agency dated November 14, 2008, complainant asked the
agency to withdraw the November 12 settlement agreement and reinstate
her underlying EEO complaint. Specifically, complainant stated that
she did not have enough time prior to the mediation to confer with her
representative or to address all issues of her underlying complaint,
and that she was unaware that she would no longer be able to pursue
unaddressed issues or seek complete resolution.
In its February 24, 2009 decision, the agency concluded that the
settlement agreement is binding on both parties and it would not
reinstate the underlying complaint. The agency stated that complainant's
representative was present at the signing of the settlement agreement and
that the agreement bears his and complainant's signature. The instant
appeal followed. On appeal, complainant alleged that the discussion
regarding change of tour hours did not occur by November 21, 2008.
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 find that complainant failed to meet her burden
of proving breach. See Vega v. U.S. Postal Service, EEOC Appeal
No. 01986613 (June 30, 2000). Based on the evidence in the record,
complainant initially requested withdrawal of the agreement due to
remorse as to the provisions rather than agency breach. Subsequently, on
appeal, complainant alleged that the agency failed to meet a timeliness
provision of the agreement, but did not state if or when the provision
was performed. We conclude that, here, both parties incurred some legal
detriment1 and complainant failed to establish that the delay undermined
the agreement's purpose or effect2. Based on the above, we AFFIRM the
final agency decision finding no breach.
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 28, 2009
__________________
Date
1 See generally Collins v. U. S. Postal Service, EEOC Request No. 05900082
(April 26, 1990).
2 See Moore v. Dep't of Commerce, EEOC Appeal No. 01A44805 (December 8,
2004).
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0120091990
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091990