01a50760
02-23-2005
Carol J. Hubert, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carol J. Hubert v. United States Postal Service
01A50760
February 23, 2005
.
Carol J. Hubert,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50760
Agency No. 4J-480-0132-03
DECISION
Complainant filed an appeal with this Commission from a September 21,
2004 agency decision finding that it was not in breach of the November
20, 2003 settlement agreement.
Paragraphs 1 and 2 of the settlement agreement provided that:
1. The [agency] , by its Postmaster [Person A], agrees to pay to
[complainant] 10 days of pay representing pay for the period from 9/2/03
through 9/15/03 at the applicable straight time rate. (i.e, 80 hours).
2. [Person A] agrees to prepare for [complainant] a letter clarifying
the job offer of 7/24/03 marked "accepted" by [complainant]. The letter
will be provided to [complainant] within one week of this agreement.
In a letter to the agency, dated March 15, 2004, complainant alleged
that the agency was in breach of paragraphs 1 and 2 of the settlement
agreement.
In its decision finding no breach, the agency stated that the adjustment
in paragraph 1 was completed on January 22, 2004. The agency also stated
that there was no time period provided for complying with paragraph
1 and also noted that the agency's pay adjustment clerk position was
vacant and that it was the holiday mailing season. Regarding paragraph
2, the agency stated that the clarification of complainant's job offer
was sent to her within three weeks and that the letter placed in writing
what had been explained verbally during the mediation.
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 record contains an undated letter from Person A to complainant in
which Person A stated that the letter was to serve as clarification
of complainant's job offer dated July 24, 2003. Person A stated that
although complainant accepted the job offer, she also stated on the offer
that the offer was against her restrictions but that she would perform
the duty. Person A also stated in the letter of clarification that he
engaged in a discussion with complainant concerning her capabilities
and complainant could not provide him with an explanation of what
functions she could perform. Person A further stated in the letter of
clarification that as a result of complainant's comment on the job offer
and the discussion with complainant, the agency was led to believe that
if complainant did return to work, the probability of re-injury would
be certain. Person A stated in the letter of clarification that these
circumstances led to the delay in complainant's return to work and the
need for additional dialogue before complainant's return.
The record contains the affidavit of Person A, the Postmaster.
The affidavit reflects that the holiday mailing season and a position
vacancy delayed the pay adjustment which was made on January 22,
2004. The affidavit also reflects that Person A sent out the letter
of clarification within three weeks of the settlement agreement.
It further reflects that because of the holiday mailing season, Person
A became busier with his daily responsibilities as the Postmaster and
did not complete the letter of clarification in one week.
Initially, the Commission notes that regarding paragraph 1, complainant
does not contend that she was not paid the proper amount for an 80-hour
week as required in the settlement agreement. She disputes only the
timeliness of payment and the period for which she was paid. Here, we
find that there is no time period for implementation of paragraph 1 in the
settlement agreement. The Commission has held that a settlement provision
without time periods is generally understood to require compliance within
a reasonable amount of time. See Gomez v. Department of the Treasury,
EEOC Request No. 05930921 (February 10, 1994). Under the circumstances
of this case, the Commission finds compliance was completed within a
reasonable time when complainant was paid in early 2004. If complainant
wanted a specific time period for implementation, she should have seen
to it that a time requirement was included in paragraph 1.
Regarding paragraph 2, we find that the agency is not in breach.
Paragraph 2 required that the agency provide a letter of clarification
within a week. The language of paragraph 2 indicates that the
agency would determine the contents of the letter of clarification.
If complainant wanted certain language to be included in the letter of
clarification, she should have had the specific language incorporated
into the settlement agreement. The Commission finds that the letter of
clarification was not completed within a week as required. Nonetheless,
the Commission finds that the agency was in substantial compliance when
it issued the letter of clarification three weeks later.
The agency's decision finding no breach of the settlement agreement
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
February 23, 2005
__________________
Date