01A24155_r
03-27-2003
Linda Wimbish, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda Wimbish v. United States Postal Service
01A24155
March 27, 2003
.
Linda Wimbish,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24155
Agency No. 1H-333-0007-00
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated May 21, 2002, finding that it was in compliance
with the terms of the December 21, 1999 settlement agreement into which
the parties entered. The settlement agreement signed by the parties on
December 21, 1999, provided that complainant would be given: �two hours
of union duties on a daily basis, without problems;� and a �full day
of union duties when the full-time steward is on a scheduled day off.�
On February 19, 2002, complainant alleged that the agency breached the
settlement agreement when her distribution operations manager denied
her request for a change of work schedule to attend union meetings that
were held on the third Tuesday of each month. The agency concluded
that the terms of the settlement agreement did not extend indefinitely,
and consequently, that there was no breach.
Settlement agreements are contracts between the employee and the agency,
to which ordinary rules of contract construction apply. Herrington
v. Department of Defense, EEOC Request No. 05960032 (December 9, 1996).
The settlement agreement in this case includes no specific terms as to
its duration. The manager stated on April 25, 2002, that complainant
previously resigned from her position as a union steward, and had
not been a steward for several months. Complainant did not dispute
the manager's assertion. The Commission finds that the change in
circumstances involving complainant's status in the union, coupled with
the passage of approximately two years since the agreement was entered
into, renders the terms of the agreement involving union duties no longer
enforceable by complainant.
Accordingly, the agency's decision finding that the agreement had not
been breached is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
March 27, 2003
__________________
Date