0120070720
03-30-2009
Encarancion Weaver, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Encarancion Weaver,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070720
Agency No. 4E-800-0304-04
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated October 11, 2006, finding that it was in compliance
with the terms of the October 22, 2004 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
1. [Complainant] shall be given annual leave in the amount
of 24 hours upon her return to work.
2. The Postal Service shall provide provisional job offers
for the positions of a) letter carrier or b) custodian; and
provide those job offers to [complainant] no later than October
25, 2004.
3. [Complainant] shall deliver the job offers to her 3
personal physicians and their written reports as to her ability
to perform the jobs to the Dept. of Labor.
4. [Complainant] shall withdraw NALC Branch 5996 grievance
H-24-04-B.
5. [Complainant] will not pursue back pay issues for the
period November 2003 to June 2004.
6. AWOL charged between November 2003 until October 22,
2004 will be changed to LWOP.
By letter to the agency dated September 25, 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 provide her with three provisional
job offers for custodian or letter carrier positions.
In its October 11, 2006 decision, the agency concluded that no breach
of the settlement agreement occurred. Specifically, the agency found
that job offers had been extended to complainant for work in Aurora,
Colorado, which complainant had declined. The agency found that
complainant accepted a Clerk position in August 2005, in Durango,
Colorado, after requesting that she be reassigned to a duty station
close to the Colorado/New Mexico border.
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 that complainant's claim that the agency
breached the 2004 settlement agreement is untimely. EEOC Regulation
29 C.F.R. � 1614.504(a) requires that claims of breach must be raised
within thirty days of when a complainant knew or should have known of
the alleged noncompliance. Specifically, we note that the agency was
obligated to extend provisional job offers to complainant as described in
the agreement, no later than October 25, 2004. Accordingly, we find that
complainant knew or should have known of the alleged breach of settlement
agreement by October 25, 2004. Complainant's letter of September 2006,
in which she alleged noncompliance with paragraph (2) of the agreement
was therefore untimely. Complainant has not made any argument that would
warrant a waiver or extension of the applicable time limits. Consequently,
the Commission dismisses complainant's breach claim as untimely raised.
We therefore AFFIRM the agency's final decision finding that no breach
of the settlement agreement of October 22, 2004 occurred.
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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