Joy Rivarde, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 30, 2009
0120073608_r1 (E.E.O.C. Jan. 30, 2009)

0120073608_r1

01-30-2009

Joy Rivarde, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Joy Rivarde,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120073608

Agency No. 4G700004705

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated June 14, 2007, finding that it was

in compliance with the terms of the Settlement Agreement (SA) signed by

the parties on March 24, 2005. See 29 C.F.R. � 1614.402; 29 C.F.R. �

1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that complainant

would be assigned as a window clerk "in that section with scheme

requirements working both the Mandeville and Windows sections"

until she exercised her bidding rights to move to another position.

Complainant claimed that she was replaced at the Windows with two

full-time flexible employees. The agency explained that, for the most

part, in the first half of her shift, she is assigned to the Mandeville

section, while other, more senior clerks opened the Windows; thereafter,

she was assigned work at the Windows. On appeal, complainant stated

she had evidence to support her claim; however, she did not provide any

evidence except a listing of some of the duties she and her co-workers

performed during the period October 2005 to February 2006.

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 the intent of the parties is expressed in the written words of

the contract, not some unexpressed intention, that controls the contract's

interpretation. 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

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 is plain and unambiguous on its face, its meaning

must be determined from the four corners of the document 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 SA provides that complainant was to be assigned to work in both the

Mandeville and Windows sections. Complainant complains that she has not

been allowed to work in the Windows section but the evidence she submitted

contradicts that assertion. It shows her being repeatedly assigned to

the Windows section during the period covered by complainant's evidence.

In addition, if complainant is complaining that she is not assigned to

the Windows section often enough, her claim fails as well. The SA does

not specify a minimum percentage of time complainant is to be assigned

to the Windows section.

After review and based on the explanation above, we find that the agency

did not breach the SA, and its FAD 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 77960,

Washington, D.C. 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

__01/30/2009________________

Date

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0120073608

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

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0120073608