0120090199
01-27-2009
Cynthia L. Nunes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cynthia L. Nunes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090199
Agency No. 4F913013207
DECISION
Complainant filed an appeal with this Commission alleging that the
agency was in breachof a settlement agreement. Complainant stated that
the agency did not respond to her claims of breach. In response to
complainant's appeal, the agency sent a document dated November 7,
2008, finding that it was in compliance with the terms of the October
31, 2007 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 agency's document will be treated as its final agency decision (FAD).
The settlement agreement provided, in pertinent part, that:
(4) Defendant understands that complainant is entering into this
stipulation for the sole purpose of obtaining disability retirement.
Defendant agrees to accept medical documentation from complainant
regarding her inability to perform the essential functions of the
position of city carrier, with or without accommodation due to her
medical condition. Upon receipt, defendant agrees to advise complainant
in writing that given her medical condition, it cannot provide her with a
position, or a reasonable accommodation so that she may continue working
as a letter carrier. Defendant shall promptly process complainant's
separation from the postal service on that basis. A separation letter
and PS Form 50 reflecting the separation (for physical/mental inability
to perform the duties of a letter carrier with or without accommodation)
shall be issued. Defendant further agrees that it will submit any
required response to complainant's application for disability retirement
and will not challenge, refute, or otherwise contest complainant's
assertion of her documented medical condition and/or her inability to
function as a letter carrier.
By letter to the agency dated September 9, 2008, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate her complaint. Specifically, complainant alleged
that her disability retirement was denied because of the actions of
the agency.
In its November 7, 2008 FAD, the agency concluded it was not in breach
of the settlement agreement. The agency provided statements submitted
to the Office of Personnel Management (OPM) indicating that based on
complainant's prognosis there was no accommodation that would allow her
to return to work.
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 Commission finds that the agency did not breach
the settlement agreement. The record contains the statements made to OPM
which indicate that the agency did not refute or challenge complainant's
application. The first form is dated January 30, 2008, and the second
- following the August 25, 2008 denial of the application - is dated
September 22, 2008. Further, the decision from OPM indicates it was not
persuaded by the medical documentation submitted by complainant to support
her application. As such, the Commission finds there was 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
January 27, 2009
__________________
Date
2
0120090199
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090199