01a01981
07-06-2000
Deborah Davis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Deborah Davis, )
Complainant, )
)
v. ) Appeal No. 01A01981
) Agency No. 840007398
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 13, 1999, finding that
it was in compliance with the terms of the August 4, 1999 settlement
agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to
as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b);
and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).
The settlement agreement provided, in pertinent part, that:
(1) The complainant agrees to serve a 90-day probationary period effective
September 11, 1999, during which she will be provided with periodic fair
and equitable performance evaluations. If she successfully completes
the probationary period, her seniority date will be retroactive to March
16, 1998, the date she was initially separated. The facility to which
assignment will be made is tentatively the Downtown Station of the Salt
Lake City Post Office. Should the assignment to the Downtown Station
not materialize, the complainant will be assigned to another office.
If the assignment results being placed in an area office (AO), seniority
will be retroactive to January 3, 1998.
(2) Should the complainant fail to complete the probationary period, she
will be separated from Postal employment. It is understood and agreed
by the undersigned that neither party shall litigate or re-litigate any
claims arising from the actions involved in the instant EEO complaint,
in any other proceeding or forum, either administrative or judicial.
(3) It is understood and agreed that except as otherwise provided in this
settlement agreement, the petitioner is subject to the usual terms and
conditions of postal employment as provided by applicable regulations
and statutes.
By letter to the agency dated November 17, 1999, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency specifically implement the terms of the agreement or
reinstate the underlying complaint. Specifically, complainant alleged
that the agency breached the agreement when they terminated her employment
and when they failed to provide her with fair and equitable performance
evaluations because she did not have one supervisor to evaluate her.
In its December 13, 1999 FAD, the agency concluded it had not breached the
settlement agreement when the complainant was terminated. Specifically,
the agency found that complainant was unable to progress to a satisfactory
level of performance. With respect to the performance evaluation, the
agency found that complainant did receive an evaluation in October 1999,
which noted her inability to progress and a failure to follow the policies
and procedures of the agency which she was previously informed of.
Moreover, the agency argues that they did not breach the settlement
agreement when complainant had more than one supervisor because she was a
part-time flexible probationary employee, and as such, she may be assigned
as needed, which may result in having more than one supervisor.
Volume 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)) 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).
As an initial matter, the Commission finds that the above agreement
is unambiguous on its face. Therefore, the Commission will apply the
four-corners doctrine in interpreting the agreement.
In the instant case, the Commission finds that the settlement agreement,
dated August 4, 1999, was not breached when she was terminated for failure
to progress and comply with policies and procedures of the agency. In
addition, the Commission finds that the complainant failed to demonstrate
that the agency breached the agreement with respect to her evaluation.
The Commission notes that complainant's assignment to different offices
was not precluded by the agreement nor was her assignment to different
supervisory officials. Complainant failed to show that her evaluations
were not fair because she had more than one supervisor. Furthermore,
the record indicates that complainant did receive an evaluation in
October 1999, during the subject probationary period. Accordingly,
the agency's decision finding no breach was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 6, 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 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.