01a50070
02-28-2005
Bonnie L. Laso, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bonnie L. Laso v. United States Postal Service
01A50070
February 28, 2005
.
Bonnie L. Laso,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50070
Agency No. 4-H-327-0164-02
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 21, 2004, finding that
it was in compliance with the terms of the August 13, 2002 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 record reflects that complainant entered into two settlement
agreements with the agency pursuant to two separate EEO complaints.<1>
Settlement Agreement 1 (SA-1) provided, in relevant part:
On a trial basis, Bonnie will work from 5am in Riviera [Beach]. She will
end her day at 2pm at the Singer Island station. The SI station will
remain open no less than 3 hours a day. Lunches, breaks, and travel
time will be determined by local management.
A notice to advise the public of any change in hours will be posted at
the Singer Island Post Office. This change [and] Bonney's (sic) change
in status to an 8-hour day will begin on August 26, 2002.
Subsequently, complainant entered into Settlement Agreement 2 (SA-2),
which provided, in relevant part:
The parties agree that Bonnie Laso's position will be held in her 8
hour status until Station Manager [JG] speaks with Postmaster [FM]
for an interpretation of the Grievance resolution dated 12/10/02 and
the EEO settlement dated 8/13/02 [SA-1].
The parties will consider the matters raised in this mediation closed if,
when [JG]\ speaks with [FM], they agree with Ms. Laso's statement that
the grievance resolution and the EEO settlement agreement keep her at
8-hours until the results of a Function 4 audit do not support an 8-hour
position inclusive of Singer Island and Riviera Beach.
If they do not agree with Ms. Laso, then Ms. Laso shall pursue her
options to enforce the settlement agreements of 2002.
[JG] shall also discuss the present job position with [FM].
By letter date July 16, 2002, complainant was advised that the agency
was abolishing her position and establishing a six-hour part-time regular
position. The stated reasons for this change were �operational changes
in our mail profile, use of overtime, and the increased automated mail
process.� Complainant was encouraged to bid on the new position.
By letter to the agency dated August 7, 2004, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reopen complaint number 4-H-327-0164-02.
In its September 21, 2004 FAD, the agency concluded that it was not in
breach of SA-1.
EEOC regulations provide 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. 29 C.F.R. �
1614.504(a). 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, SA-1 did not contain any language guaranteeing
that the agency would maintain complainant's full-time position for any
particular period of time. The agency maintained complainant's full-time
position for nearly two years, until such time as a functional audit,
conducted pursuant to the terms of SA-2, determined that a full-time
position was not warranted.<2> The position therefore was abolished,
and complainant was advised that she could bid on the newly-established
part-time position. Based upon the foregoing, the Commission concludes
that the agency has not breached SA-1. The final agency decision
therefore 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.
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�).
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).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 28, 2005
__________________
Date
1The two complaints are agency numbers 4-H-327-164-02 and 4-H-0137-04.
Only the first complaint is at issue in the instant appeal.
2As noted by the agency, the exact type of audit specified in SA-2 is no
longer in use. The audit was conducted in accordance with appropriate
agency procedures, as revised.