0120070654
03-18-2009
Cheryl Thompson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cheryl Thompson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070654
Agency Nos. 1F901016006
1F-901-0028-06
DECISION
Complainant filed an appeal with this Commission from a Letter of
Determination by the agency dated August 3, 2006, finding that it was
in compliance with the terms of settlement agreements entered into on
September 22, 2005 and January 19, 2006. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.1
The settlement agreement dated September 22, 2005, provided, in pertinent
part, that:
(1) Management agrees to withdraw the seven (7) and fourteen (14)
day suspensions.
A. Counselee to do the following: For a period of six (6) months,
she will not have more than 40 hours of unscheduled leave and zero (0)
AWOLs [absences without leave]. The only exceptions are FMLA [Family
and Medical Leave Act] and emergency leave.
B. If the above is violated, a seven day suspension will become
effective.
The settlement agreement dated January 19, 2006, provided, in pertinent
part, that:
(1) Complainant will provide medical documentation for her absence
from work for the period beginning September 22, 2005 through October 10,
2005 and from December 5, 2005 until the present date.
(2) Complainant will provide this documentation within one (1)
week of this agreement.
(3) Management will then amend the complainant's transfer evaluation
to state that all leave was authorized through substantiation.
Additionally, this evaluation will be revised wherein it will no longer
state that the complainant has undocumented leave for the period during
which she was incapacitated, and for which she provides substantiation.
By letter to the agency dated April 27, 2006, 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 failed to submit a new transfer evaluation.
In its August 3, 2006 Letter of Determination, the agency concluded that
complainant failed to supply the medical documentation supporting her
absences. Accordingly, complainant's attendance record indicated she was
incurring Leave Without Pay (LWOP). Further, the agency maintains that
since then, complainant has supplied the requisite medical documentation,
and has been provided a new transfer evaluation.
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, the agency maintains that complainant did not submit
medical documentation supporting her absences within the time frame
provided under the settlement agreement. Accordingly, prior discipline
was reinstated.2 Complainant does not dispute this, and only states that
her family has had numerous serious medical problems. Accordingly, we
find complainant failed to establish that the agency violated the terms
of the settlement agreement. The agency's final decision is AFFIRMED.3
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
March 18, 2009
Date
1 The record reveals that complainant sought EEO Counseling on September
13, 2006 regarding the agency's continued failure to correct her records.
By letter dated September 28, 2006, the agency informed complainant
that it had already issued her a Letter of Determination regarding
this claim of breach dated August 3, 2006. We consider this matter an
appeal of that Letter of Determination. Although this appeal appears to
be untimely filed, the record does not contain proof of complainant's
receipt of the agency's Letter of Determination. Accordingly, we deem
the appeal timely filed.
2 The record contains a February 10, 2006 transfer request denial and
evaluation indicating a seven (7) day suspension was effective for
failure to comply with the terms of the agreement.
3 To the extent that complainant alleges that the agency retaliated
against her when she was denied a transfer, we remind the agency that
allegations of subsequent acts of discrimination violate a settlement
agreement shall be processed as separate complaints under � 1614.106,
as appropriate. Should complainant desire to pursue this allegation,
she should contact an EEO Counselor upon receipt of this decision.
For timeliness purposes, the date of complainant's initial contact is
September 13, 2006. See n.1, supra.
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0120070654
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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