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
2
0120073608
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
4
0120073608