0120091859
06-09-2010
Jaccilyn Tunore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Jaccilyn Tunore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120091859
Agency No. 1E-837-0005-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's Letter of Determination dated March 18, 2008, finding that it was in compliance with the terms of an October 9, 2007 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The October 9, 2007 settlement agreement provided, in pertinent part, that:
(1) Parties agree that Jaccilyn Tunore resign effective July 17, 2007. PS Form 50 will reflect that she resigned for personal reasons.
(2) Parties agree that when Jaccilyn is medically released she will seek reinstatement, and she will be given the first available casual appointment, given that she meets all the pre-employment screening processes.
By letter to the agency dated January 27, 2009, complainant alleged breach, and requested that the agency specifically implement the terms of the settlement agreement. In its March 18, 2008 Letter, the agency stated that at the end of October 2008, complainant's mother inquired about her daughter's entitlement under the settlement agreement and provided a note stating that her granddaughter was "ok to go to daycare." The agency Manager interpreted this as reflecting complainant's interest in coming back to work. Therefore, the Manager contacted a Human Resource Representative to find out what had to be done. The Human Resource Representative informed the Manager that a new application had to be filled out and a medical screening process would have to be completed.
Complainant completed the application in November 2008, and the application was sent to the Spokane District Office for processing. Complainant was cleared for appointment and was given a casual appointment in the Boise Processing & Distribution Center. Complainant failed to attend her scheduled orientation class which resulted in another individual being given the first casual appointment after complainant's medical release. Complainant was allowed to attend a later orientation and was hired on December 8, 2008. She was released from duty in January 2009, along with four other casual employees whose services were no longer required. Based on these facts, the agency concluded it had not breached the agreement.
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).
The Commission is somewhat confused by the brief submitted in support of the appeal. First, complainant argues that the agency should not have dismissed the case for "failure to state a claim." We note, however, that the agency did not do so. Instead, the agency found that it was in compliance with the agreement. Second, complainant argues that she was denied "rehire," of which there is no evidence and no indication of the time frame she is referencing. Third, she argues that a breach occurred when complainant was released from employment. We note, however, that the agreement did not specify any duration for the casual appointment. Finally, she argues that she was not hired for the first available position and that the position for which she was hired was not the one from which she resigned. As noted above, it was complainant's own failure to report for a scheduled orientation that operated to allow someone else to be the first casual appointment made after her medical release. In addition, the settlement agreement is silent about complainant being returned to the position from which she resigned.
CONCLUSION
Upon review of the record, we find that the agency complied with the settlement agreement when it gave complainant a causal appointment in December 2008. The agency's finding of no breach is AFFIRMED.
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
June 9, 2010
__________________
Date
2
***Appeal number TX***
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013