0120071561
01-22-2009
Jana Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jana Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071561
Agency No. 1G-761-0037-06
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated January 30, 2007, finding that it was in
compliance with the terms of a March 22, 2006 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The March 22, 2006 settlement agreement provided, in pertinent part,
that:
1. Management agrees to last chance agreement (LCA)
for a minimum of 2 years.
2. 8 individual absences (unscheduled) within 2 year
period.
3. Any AWOL - Automatic Termination.
4. Random drug testing for entire LCA.
5. Release of EAP statements & agrees to attend as
required.
6. The union & employee agree that there will be no appeal rights
regarding the LCA.
On March 23, 2006, the agency met with complainant to present to her the
LCA as drafted by the agency, referenced above. The LCA was incorporated
into the March 22, 2006 settlement.
The LCA provided, in pertinent part, that:
5. Evidence directly linking [complainant] to attempts toward
altering a specimen to avoid detection of unauthorized substances
or her failure to submit herself for urinalyses will also be
grounds for immediate removal from the Postal Service without
any appeal rights.
6. [Complainant] agrees that within the 24 month LCA period any AWOL
will be grounds for immediate removal from the Postal Service without
any appeal rights.
The record reflects that complainant was removed from agency employment
effective July 14, 2006, for Continued/Unsatisfactory Attendance.
Specifically, complainant was charged with continued failure to maintain
attendance requirements of position resulting in violation of the March
23, 2006 LCA.
The record reflects that, on an unspecified date, complainant alleged
that the agency breached the March 22, 2006 settlement agreement.
Specifically, complainant alleged that the settlement agreement was
breached when she was removed for violating the LCA because provision
5 was too broad and ambiguous, and because provision 6 could not be
enforced because it violates the Collective Bargaining Agreement and was
never signed and approved by a union official. She also argues that the
instant LCA should be null and void because she received no consideration
in exchange for her agreement to withdraw her complaint.
In its January 30, 2007 final decision, the agency found no breach.
The agency determined that the Labor Relations Specialist (S1) stated
that the agency never requested that complainant take a urine test so
provision 5 had nothing to do with complainant's July 2006 removal from
agency employment. The agency further determined that the Attendance
Control Specialist (S2) stated that complainant and her representative
were both aware and agreed on the language in provision 6. S2 also
stated that complainant knew and understood that she needed to maintain
a satisfactory conduct, attendance and performance in order to continue
to work for the agency.
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).
Upon review, we agree with the agency that provision 5 of the instant
agreement was irrelevant to complainant's July 2006 termination.
With regard to provision 6, we first note that we are unpersuaded
by complainant's argument that she received no consideration in the
agreement. On the face of the agreement it is clear that the agency
agreed not to effectuate a proposed removal issued on November 15, 2005.
This is adequate consideration to validate the agreement. Complainant
also argues that provision 6 violates the Collective Bargaining
Agreement because the instant agreement was never signed and approved
by a union official. Again, we determine no breach of the agreement.
Both complainant and her representative signed the agreement and it is
binding on the parties. To the extent that the union believes its role
as the bargaining representative of agency employees was usurped in this
matter, that is an appropriate claim to make in an unfair labor practice
charge, but does not, under the facts of this case, invalidate the EEO
settlement agreement.
Accordingly, the agency's determination of no breach is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 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 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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 22, 2009
__________________
Date
2
0120071561
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071561