Lorna P. Ryan, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionAug 25, 2000
01996158 (E.E.O.C. Aug. 25, 2000)

01996158

08-25-2000

Lorna P. Ryan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast Area), Agency.


Lorna P. Ryan v. United States Postal Service

01996158

August 25, 2000

.

Lorna P. Ryan,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 01996158

DECISION

Lorna P. Ryan (complainant) filed a timely appeal with this Commission

from a final decision by the agency (FAD) dated July 1, 1999, finding

that it was in compliance with the terms of the March 15, 1999 settlement

agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,

37,659, 37,660 (1999)(to be codified and hereinafter referred to

as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b);

and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �

1614.405).

The settlement agreement provided, in pertinent part, that:

(1) the agency agrees to change the hours and off days of the

Modified Distribution Clerk<2> position to 0500 - 1350, with off days

of Saturday/Friday... (The position description includes a list of

duties/responsibilities. Duty/Responsibility #3 is �manually distributes

mail in case separations by zip code and scheme.�);

the agency will also adhere to complainant's work restrictions as noted

by her physician in the assignment of duties;

there will be no retaliation against the complainant for her EEO

activities.

By letter to the agency dated May 7, 1999, complainant alleged that

the agency was in breach of the settlement agreement and requested

reinstatement of the twenty-five complaints she withdrew in furtherance

of the settlement agreement. Specifically, complainant alleged that the

agency refused to give her work within the parameters of the position

description and forced her to do work beyond her accepted restrictions by

requiring her to sort flats, in addition to letters. Complainant also

alleged that the agency retaliated against her by demoting her husband,

a Postal Manager, to rotating days off, thwarting her request for days off

to coincide with family time. Finally, she contended that other employees

were performing the duties of her accepted position in her stead.

In its July 1, 1999 FAD, the agency concluded that the settlement

agreement had not been breached. Agency officials stated that complainant

was performing work within the position description and within her

medical restrictions. The agency noted that complainant was restricted to

intermittent standing for 4 hours a day, intermittent sitting for 4 hours

a day, intermittent lifting of up to 20 pounds and no bending<3> and that

she was not required to do any work that violated these restrictions.

The agency concluded that while complainant felt that requiring her

to sort flat mail was outside her position description and violated

her restrictions, the position description allowed for this activity

and it did not violate her restrictions. Specifically, the position

description lists �manually distributes mail in case separations by zip

code and scheme� as Duty/ Responsibility #3. The agency's apparent

argument is that the �mail� referred to in Duty/Responsibility #3

includes both letters and flats, i.e., pieces of mail which exceed the

dimensions for letter-size mail. The agency explained that it modified

the case<4> in which complainant was required to sort flats so that the

task would not violate her restrictions. The agency also noted that

complainant's husband was temporarily assigned to rotating days off

when a supervisor at his station was reassigned, but that the position

has been reassigned and complainant's husband again had weekends off.

Finally, the agency noted that the individuals allegedly performing the

duties of complainant's accepted position in her stead, were not doing

so and had their own assignments.

According to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.504(a)) 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 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).

In the instant case, the agreement requires that complainant

manually distribute mail in case separations by zip code or scheme.

It makes no distinction between letters and flats, two types of mail.

While complainant argues on appeal that the agency was aware that her

restrictions prevented her from sorting flats, as evidenced by affidavits

taken in various EEO complaints, the agreement unambiguously imposes on

complainant the duty of manually distributing mail. The plain meaning of

�mail� includes both letters and flats. We will, therefore, not consider

extrinsic evidence that suggests that complainant had a different

intention when she agreed to this requirement. To the extent that

complainant wanted the agreement to exclude the sorting of a certain type

of mail from her duties, that requirement should have been reduced to

writing as part of the settlement agreement. See Jenkins-Nye v. General

Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).

Moreover, complainant has provided no evidence that the agency forced

her to work outside her restrictions. She did not allege that the

restrictions described by the agency are not her true restrictions,

nor did she explain how sorting flats violates these restrictions.

Rather, she referred to affidavits taken during the investigation of

various EEO complaints which indicate that agency officials were aware

that one of the duties complainant said she could not perform due to

her medical condition was sorting flats. This does not establish that

sorting flats violates any of her medical restrictions.

As for complainant's contention that the agreement was breached when

her husband was given rotating days off, we note that no provision in

the agreement mentions her husband or his days off. Any action taken

by the agency against complainant's husband could not, therefore, be a

breach of the settlement agreement.

In terms of complainant's allegation that demoting her husband to

rotating days off violated the anti-retaliation provision of the

agreement, the Commission has held that a complaint which alleges

reprisal or further discrimination in violation of a settlement agency's

"no reprisal" clause, is to be processed as a separate complaint and not

as a breach of settlement. See Bindal v. Department of Veterans Affairs,

EEOC Request No. 05900225 (August 9, 1990); 29 C.F.R.� 1614.504(c).<5>

Therefore, to the extent that complainant alleged that actions taken by

the agency were in violation of the anti-retaliation provision of the

settlement agreement, we advise complainant that if she wishes to pursue

any allegations of retaliation, she should contact an EEO Counselor within

thirty (30) calendar days of the date that she receives this decision.

Accordingly, we find that the agency correctly determined that it did

not breach the settlement agreement and hereby AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

August 25, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 A position description of this modified position was signed by

complainant on March 15, 1999 and attached to the settlement agreement.

3 The record does not contain any clear listing of complainant's medical

restrictions, such as a doctor's letter. In various documents, the

agency refers to the above as complainant's restrictions and she makes

no argument to the contrary.

4 A �case� is a piece of equipment containing separations (pigeonholes)

into which letters, flats or irregular parcels are sorted.

5 We note, however, that it appears that such a claim would only be

cognizable if made by complainant's husband, as he was the victim of

the alleged adverse action.