01991029
02-10-2000
Arlene Hunt, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Arlene Hunt v. United States Postal Service
01991029
February 10, 2000
Arlene Hunt, )
Complainant, )
)
v. ) Appeal No. 01991029
) Agency Nos 4A-070-1136-96
William J. Henderson, ) 4A-070-1164-96
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 16, 1998, complainant filed a timely appeal with this
Commission from a final decision (FAD) dated September 22, 1998, finding
that it was in compliance with the terms of the June 2, 1998 settlement
agreement entered into by the parties.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to as
EEOC Regulations 29 C.F.R. ��1614.402, .504(b)); EEOC Order No. 960,
as amended.
The settlement agreement, in pertinent part, provided the following:
Remove 14 day suspension dated 8/6/96.
Continue with Saturday/Sunday rest days.
No supervision by [a named agency official].
By letter to the agency dated June 4, 1998, complainant alleged that the
agency was in breach of provision (2) of the settlement agreement, and
requested that the agency specifically implement its terms. Specifically,
complainant alleged that the agency failed to comply with provision (2)
by purportedly failing to honor Saturdays and Sundays as her rest days.
Specifically, complainant's breach allegation referred to a memorandum
from her supervisor dated June 3, 1998 indicating that effective Saturday
June 6, 1998, complainant's rest days would be Sunday and Tuesday,
instead of Saturday and Sunday.
In its September 22, 1998 FAD, the agency stated that in a subsequent
memorandum from complainant's supervisor dated June 13, 1998, complainant
was advised that her non-scheduled days would indeed be Saturday and
Sunday. The agency also indicated that in a June 12, 1998 memorandum
from the Agency Postmaster to complainant's union representative, the
Postmaster stated that the settlement had been "reverted back to its
original form."
In 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. �1614.504(a)), the regulation
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).
It appears from the record in the instant case that the settlement between
the parties was reached following complainant's prior removal from agency
employment. The agreement provided that complainant would return to her
position "continuing with Saturday/Sunday rest days." However, prior
to her return to work, she received a memorandum from the agency dated
June 3, 1998, indicating Sunday and Tuesday as complainant's days off, in
violation of the June 2, 1998 settlement agreement. The record indicates
further that in a subsequent memorandum to complainant issued June 10,
1998, the agency properly identified Saturday and Sunday as complainant's
rest days in accordance with the agreement between the parties.
Upon review, we find that the agency's determination that it did not
breach the June 2, 1998 settlement agreement was proper. Pursuant to
29 C.F.R. �1614.504(b), an agency has 35 days from the receipt of a
complainant's allegation of breach to resolve the matter. The Commission
has consistently interpreted that provision to mean that an agency has 35
days within which to cure any breach that has occurred. See Covington
v. USPS, EEOC Appeal No. 01912311 (September 30, 1991). To the extent
that the agency breached provision (2) of the settlement agreement,
any alleged breach was cured within seven days of the complainant's
receipt of the agency's June 3, 1998 memorandum incorrectly referencing
complainant's rest days. Accordingly, we AFFIRM the agency's decision
that no breach of the settlement agreement occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644 37, 659 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,
644, 37,661 (1999)(to be codified at and hereinafter referred to as 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 (S1199)
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:
February 10, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at WWW.EEOC.GOV.