Dolores M. Berliner, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 30, 2009
0120070327 (E.E.O.C. Mar. 30, 2009)

0120070327

03-30-2009

Dolores M. Berliner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Dolores M. Berliner,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070327

Agency No. 4H-330-0023-06

DECISION

Complainant filed an appeal with this Commission from a final decision by

the agency dated September 19, 2006, finding that it was in compliance

with the terms of the December 13, 2005 settlement agreement into which

the parties entered.

The settlement agreement provided, in pertinent part, that:

1. Personnel will submit a letter to Postal Headquarters along

with [complainant's] requests for reconsideration and appropriate

documentation and copy of the REDRESS settlement regarding her request

to change her current voluntary separation to voluntary early retirement.

[Complainant] will submit her request and all active documents by January

3, 2006, certified mail to [HR1]. [HR1] will submit her written letter

to Postal Headquarters, by Wednesday, January 11, [2006]. This letter

will be sent (along with all documentation submitted) by certified mail.

Additionally, [HR1] will send [complainant] copies of the letter

submitted to Postal Headquarters by certified mail. This will

be sent to the address of record.

2. All parties agree that if an unfavorable decision is rendered

by Postal Service Headquarters that [complainant] is free to pursue this

in whatever venue she deems appropriate.

On January 26, 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 HR1,

an agency official identified in the settlement agreement submitted

incorrect information to Postal Headquarters and failed to inform

complainant of additional options she had with respect to her active

service computation and retirement compensation.

In its September 19, 2006 decision, the agency concluded that the

agency complied with the terms of the settlement agreement and found

specifically that HR1 submitted a letter to Postal Service Headquarters,

dated January 3, 2006, and that complainant had received a copy of this

letter as well as a response to the letter, dated January 30, 2006,

from Postal Service Headquarters.

On appeal, complainant recounts the events in her career of more

than 20 years with the agency that ultimately led to her retirement.

Complainant describes what she believes to be the mishandling of her

retirement options and other administrative errors and omissions on the

part of agency officials to fully inform her of the opportunity she had

to take advantage of early retirement incentives.

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, we find the only issue on appeal is whether the

agency complied with the terms of the settlement agreement dated December

13, 2005. We note that the agreement requires the agency to send a letter

to Postal Service Headquarters and that the record on appeal indicates the

agency did exactly that. Nothing in the settlement agreement guarantees

a specific response to the letter described in provision (1), nor does

the settlement agreement provide any further benefits for complainant

in the way of any change in her retirement benefits. We concur with

the agency's final decision that the agency has fully implemented the

terms of the settlement agreement and that no breach of the agreement

occurred as alleged. We AFFIRM the agency's final decision.

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 30, 2009

__________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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